In the proposed claim submitted with this motion, claimant alleges that while
he was incarcerated at Marcy Correctional Facility, certain items were taken
from his locker on February 6, 2002, after he had been confined to the
special housing unit. Claimant seeks damages of $260.61.
Since this is a proposed claim sounding in bailment brought by an inmate in the
custody of the department of correctional services, such claims must be served
and filed in accordance with the provisions of § 10(9) of the Court of
Claims Act. This section requires that such a claim must be served and filed
within 120 days after the inmate has exhausted his or her administrative
In this matter, claimant apparently filed an institutional claim seeking
recovery for his alleged loss at Marcy Correctional Facility on April 17, 2002.
This institutional claim was denied on May 7, 2002, and claimant's appeal of
this denial was disapproved by the superintendent on May 18, 2002. Pursuant to
§ 10(9), therefore, claimant had until September 16,
to serve and file his claim. Defendant
acknowledges that a notice of intention to file a claim was received by
defendant on May 9, 2002, but that no claim was served upon defendant. The
Court has no record of any claim being filed within the time period provided by
§ 10(9). Apparently realizing that no such claim was served or filed,
claimant has brought this application seeking late claim relief.
With regard to this application, defendant contends that late claim relief
under § 10(6) of the Court of Claims Act is not available to bailment
claims brought by inmates under § 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.
, 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
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 states that he was unaware of the requirement
that a notice of intention (received by the Attorney General on May 9, 2002) had
to be served by certified mail, return receipt requested. However, this Court
has previously held that § 10(9) of the Court of Claims Act does not
authorize the service of a notice of intention to extend the time within which a
claim must be filed and served (Cepeda v State of New York, Ct Cl,
October 22, 2001, Midey Jr., J., Claim No. 104717, Motion No. M-64015 [UID No.
2001-009-49]). Claimant's excuse 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).
Claimant also argues that his medical status, coupled with restricted access
to legal materials in the facility law library, limited his ability to timely
serve and file a claim. Although medical incapacity throughout the statutory
period for service and filing may be a reasonable excuse (Bloom v State of
New York, 6 Misc 2d 553, affd 5 AD2d 930), allegations of such
incapacity must be supported by a physician's affidavit or other proof
satisfactory to the Court (Cabral v State of New York, 149 AD2d 453).
Additionally, limited access to legal references does not excuse one from the
requirement to timely serve and file a claim (Sandlin v State of New
York, 294 AD2d 723). Accordingly, the Court does not find that claimant has
provided an acceptable excuse for the delay in the service and filing of this
Based on the administrative claim previously processed at Marcy Correctional
Facility, as well as the improperly served notice of intention received by the
Attorney General on May 9, 2002, the Court finds that the State did have notice
and an opportunity to investigate claimant's alleged loss. The Court therefore
finds that there would be no prejudice to the defendant if the requested relief
were to 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, after weighing and considering all of the factors set forth under
Court of Claims Act, § 10(6), it is the opinion of this Court that claimant
should be allowed to serve and file his proposed claim.
Accordingly, it is
ORDERED, that Motion No. M-66389 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.