New York State Court of Claims

New York State Court of Claims

MONROE v. THE STATE OF NEW YORK, #2003-009-21, Claim No. NONE, Motion No. M-66389


Claimant's application for late claim relief was granted, with the Court specifically finding that late claim relief under § 10(6) was applicable to bailment claims asserted under § 10(9).

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
June 9, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim pursuant to Court of Claims Act, § 10(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, with Exhibits 1,2

Affirmation in Opposition, with Exhibit 3

Reply 4

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 remedies.

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, 2002[1] 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. 2003-013-010)[2], 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[3].

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 claim.

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.

June 9, 2003
Syracuse, New York

Judge of the Court of Claims

[1] The 120th day following May 18, 2002 was September 15, 2002. Since that day was a Sunday, claimant had until Monday, September 16, 2002, to serve and file his claim (General Construction Law, § 25-a).
[2] Unpublished decisions and selected orders of the Court of Claims are available via the Internet on the Court of Claims website ().
[3] 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]).