New York State Court of Claims

New York State Court of Claims

ROBERTS v. THE STATE OF NEW YORK, #2003-009-19, Claim No. 107029, Motion Nos. M-66227, M-66234


Synopsis


Defendant's motion to dismiss this bailment claim for improper and untimely service was granted. Claimant's motion for permission to serve and file a late claim was granted, with the Court finding that such relief under § 10(6) is available for bailment claims asserted under § 10(9).

Case Information

UID:
2003-009-19
Claimant(s):
GREGORY ROBERTS
Claimant short name:
ROBERTS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107029
Motion number(s):
M-66227, M-66234
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
GREGORY ROBERTS, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
June 3, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought a motion (M-66227) seeking an order dismissing the claim for improper and untimely service. Apparently in response, claimant has brought a motion (M-66234) seeking permission to serve and file a late claim. For purposes of judicial economy, the Court will consider both motions together.

The following papers were considered by the Court in connection with these motions:
Pre-Answer Notice of Motion, Affirmation in Support (M-66227) 1,2


Notice of Motion, Affidavit in Support, with Exhibits (M-66234) 3,4

Affirmation in Opposition (M-66234) 5

In his claim, claimant alleges that certain items of his personal property were lost or misplaced, and not returned to him, when he was transferred from Marcy Correctional Facility to Five Points Correctional Facility on April 16, 2002. Claimant seeks total damages of $100.00.

As set forth in the affirmation submitted by defendant in support of its motion to dismiss this claim (see Item No. 2), a notice of intention to file a claim was received by the Attorney General on August 1, 2002. Subsequently, the instant claim was received by the Attorney General's office on December 6, 2002. Defendant asserts that both the notice of intention to file a claim and the claim were improperly served on the Attorney General, and in addition, that the claim was not timely served.

Section 10(9) of the Court of Claims Act sets forth the time limitations for the service and filing of claims sounding in bailment brought by an inmate in the custody of the Department of Correctional Services. This section requires that such a claim be served and filed within 120 days after the inmate has exhausted his or her administrative remedies.

As set forth in his claim, claimant indicates that he pursued his alleged loss administratively by filing an institutional claim for the value of his lost items on April 30, 2002; that this administrative claim was denied; and that the denial was affirmed on appeal by the Superintendent's Designee on June 18, 2002. Pursuant to § 10(9) of the Court of Claims Act, therefore, a claim was required to be filed and served by October 16, 2002 (120 days from the date the appeal was affirmed). Since it is undisputed that the claim was not served until December 6, 2002, it is clearly untimely[1].

In addition to untimely service of the claim, defendant also asserts that both the notice of intention to file a claim and the claim were served improperly, in that they were served by regular mail and not by certified mail, return receipt requested, as required by Court of Claims Act, § 11. Although defendant's attorney asserts in his moving papers (see Item No. 2) that copies of the envelopes in which these papers were served have been attached as exhibits to defendant's moving papers, the Court has been unable to locate such exhibits in the papers before it on this motion. However, in his accompanying motion seeking leave to serve and file a late claim, claimant has not contested the affirmation of defendant's attorney that the notice of intention and the claim were both served by regular mail, and not by certified mail, return receipt requested. Accordingly, this Court finds that the claim which was served on December 6, 2002 was not served in accordance with the requirements of Court of Claims Act, § 11(a).

The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State and therefore they must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607; Philippe v State of New York, 248 AD2d 827). As a result, this Court does not have the authority to cure or overlook defects in the time and manner of service and filing, and this claim is therefore subject to dismissal.

Apparently realizing that his claim was not timely or properly served, claimant instituted a motion seeking permission to serve and file a late claim, which must now be considered by the Court.

With regard to this application, defendant contends that late claim relief is not available to bailment claims brought by inmates. Specifically, defendant argues that late claim relief, since it is specifically authorized and permitted only under § 10(6) of the Court of Claims Act, does not extend to bailment claims brought pursuant to § 10(9) of the Act.

Section 10(9) of the Court of Claims Act was enacted in 1999 (L 1999, ch 412, pt D, § 2), and provides that any claim "for injury to or loss of personal property" brought by "any inmate in the custody of the department of correctional services" must be served and filed within 120 days after the date on which administrative remedies have been exhausted by the inmate. Section 10(6), which was enacted by the Legislature prior to 1999, provides for the possibility of late claim relief for those claims which have not been timely served and/or filed in accordance with "foregoing subdivisions". Since § 10(9) is clearly not a foregoing provision in relation to § 10(6), defendant argues that late claim relief is not available to claims asserted under § 10(9).

This specific issue has previously been addressed by two of my esteemed and learned colleagues on the Court of Claims, with conflicting results in separate and well-reasoned decisions. In McCann v State of New York, 194 Misc 2d 340, the Court determined that the express language of § 10(6) precluded late claim relief to applications asserting a cause of action under § 10(9). The Court reasoned that the Legislature had the option of inserting the provisions of what would become § 10(9) either before or after § 10(6). Since the Legislature specifically decided to place § 10(9) after § 10(6), the Court concluded that the Legislature had decided to make late claim relief under § 10(6) unavailable for such claims, and the Court should not negate this specific decision.

In reaching the opposite decision in Wright v State of New York, Ct Cl, March 26, 2003, Patti, J., Claim No. 104699, Motion No. M-65879 (UID No. 2003-013-010), the Court concluded that the "object, spirit and purpose of Section 10(6)" would best be served by extending the provisions therein to claims asserted under § 10(9). The Court reasoned that since late claim relief under § 10(6) is available to other types of claims brought by inmates, as well as to claims for property loss made by persons other than inmates, there was "no logical or legitimate reason" for the Legislature to abolish such a significant remedy for one specific type of claim brought by one specific class of claimants[2]. This Court is in agreement with the rationale supporting the decision made in Wright, and finds that late claim relief under § 10(6) is available to inmates for lost property claims asserted under § 10(9) of the Court of Claims Act. As a result, the Court must now consider whether such relief should be granted to claimant in the instant application.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117).

With regard to excuse, claimant asserts that his failure to properly serve his claim was due to the fact that he did not have sufficient funds in his account to mail the claim by certified mail, return receipt requested. However, the method of service is a jurisdictional prerequisite to the institution and maintenance of a claim in this Court, and such jurisdictional requirements must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721, supra; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607 supra). Claimant also contends that he erroneously believed that he had one full year to serve and file his claim, and that he was not limited to the 120 day statutory period set forth in § 10(9). This excuse, however, amounts to ignorance of the law and does not provide an acceptable excuse for delay (Matter of E.K. v State of New York, 235 AD2d 540; Sevillia v State of New York, 91 AD2d 792).

The issues of notice, opportunity to investigate, and prejudice will be considered together. Although § 10(9) neither requires nor authorizes the service of a notice of intention to file a claim (as previously discussed herein), the service of claimant's "Notice of Intent to File Claim" received by the Attorney General on August 1, 2002, provided the State with notice and an opportunity to investigate claimant's alleged loss. Defendant apparently concedes that it received the requisite notice, that it had an opportunity to investigate the underlying facts of this claim, and that it would suffer no undue prejudice should claimant's application be granted.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1). The claim herein appears to present a potentially viable cause of action for bailment.

It does not appear that claimant has any other available remedy.

The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979) and none of the factors can require denial as a matter of law.

Therefore, even though Claim No. 107029 must be dismissed upon jurisdictional grounds, the Court finds that late claim relief is available to inmate bailment claims brought pursuant to § 10(9), and that in this particular claim, claimant has made a sufficient showing for this Court to permit the service and filing of a late claim.

Accordingly, it is

ORDERED, that Motion No. M-66227 is hereby GRANTED; and Claim No. 107029 is hereby DISMISSED; and it is further

ORDERED, that Motion No. M-66234 is hereby GRANTED, and claimant is directed to serve his claim upon the Attorney General and to file his claim with the Chief Clerk of the Court of Claims within 45 days from the date of filing of this decision and order in the Clerk's office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.


June 3, 2003
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1] Unlike Court of Claims Act, § 10(3), which governs claims for the loss of personal property by all others, there is no provision in § 10(9) authorizing the service of a notice of intention to extend the time within which a claim must be filed and served (see, Cepeda v State of New York, Ct Cl, October 22, 2001, Midey Jr., J., Claim No. 104717, Motion No. M-64015 [UID No. 2001-009-049]; Gloster v State of New York , Ct Cl, June 5, 2002, McNamara, J., Claim No. 103662, Motion No. M-64877 [UID No. 2002-011-550]. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at http://.
[2] The Court, in Wright, also noted that the legislation enacting § 10(9) contained a sunset provision, in that the current provisions of this section expire on September 1, 2003. Therefore, if late claim relief was held to be inapplicable, such relief would in effect be denied to a certain class of claimants (inmates) for a particular type of claim (bailments) and only for a limited period of time (from December 7, 1999 [the effective date of Chapter 412 of the Laws of 1999] to September 1, 2003 [the sunset date]).