Notice of Motion, Affidavit in Support, Proposed Claim 1,2,3
Affirmation in Opposition, with Exhibits 4
In his proposed claim, claimant seeks monetary damages for the loss of certain
items of personal property which were confiscated by officials at Marcy
Correctional Facility on October 26, 2001, upon claimant's confinement to the
Special Housing Unit. Claimant has asserted causes of action alleging that the
defendant intentionally and wrongfully confiscated said items, and either
intentionally or negligently failed to secure his items of personal property.
Claimant has also asserted a cause of action for Constitutional Tort.
Initially, it is noted that this Court previously dismissed a claim seeking the
identical relief previously filed by claimant. In a decision and order dated
July 29, 2003
, this Court found that claimant
had improperly served that prior claim upon the Attorney General, thereby
creating a jurisdictional defect requiring dismissal. It is further noted that
in his notice of motion accompanying this motion, claimant has requested that
the Court vacate its prior dismissal. Claimant, however, has not addressed this
request in the within motion, and therefore has not submitted any legal or
factual argument as to why the prior dismissal should be vacated. Nonetheless,
this Court has reviewed its earlier decision and again finds that Claim No.
106882 was not timely served, and therefore was properly dismissed.
This motion, therefore, has been considered by the Court as a motion requesting
permission to serve and file a new claim pursuant to Court of Claims Act §
10(6). 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 explains that his prior claim was served by
regular mail, and not by certified mail, return receipt requested, as provided
by statute, based upon the fact that he had previously served a notice of
intention to file a claim upon the Attorney General by certified mail, return
receipt requested. Court of Claims Act § 11(a), however, specifically
requires both the claim and a notice of intention to be served either personally
or by certified mail, return receipt requested. It is well settled that
ignorance of the law does not provide an acceptable excuse for delay (Matter
of E.K. v State of New York, 235 AD2d 540, lv to appeal denied 89
NY2d 815; Sevillia v State of New York, 91 AD2d 792).
Based upon claimant's prior service of a notice of intention to file a claim,
as well as the improper service of the prior claim (Claim No. 106882), defendant
concedes that it had notice of the essential facts constituting this claim, that
the State had an opportunity to investigate the circumstances of the claim, and
that the State would therefore not be prejudiced should this application for
late claim relief 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).
As set forth above, claimant alleges causes of action for wrongful taking of
his personal property, as well as the intentional or negligent loss of said
property. The essential facts of this proposed claim are not in dispute.
Defendant does not contest the fact that the items of property set forth in the
proposed claim were confiscated by facility personnel on October 26, 2001, when
claimant was confined to the Special Housing Unit on an unrelated charge.
Defendant contends, however, that many of the items taken from claimant were not
owned by him, and he therefore was not legally permitted to possess those items.
Additionally, the State claims that many of the other items confiscated were
subsequently returned to claimant in November, 2001. Defendant therefore
contends that claimant has not asserted a meritorious claim.
The Court's role on a late claim application, however, is not to decide factual
issues, but merely is to determine whether the claim has the appearance of merit
(Matter of Santana v New York State Thruway Authority, supra).
Based on the papers submitted herein, the Court therefore finds, for the limited
purposes of this application only, that claimant has alleged a meritorious cause
of action. Claimant, however, should not construe this finding as any
indication that he will ultimately prevail on the merits, but merely that he has
satisfied the minimal standard of merit required for late claim applications
prescribed by Santana.
Defendant also contends that if this claim is considered to be one for lost
property sounding in bailment, that late claim relief under Court of Claims Act
§ 10(6) is unavailable (see, McCann v State of New York
, 194 Misc 2d
340). This Court, however, has previously determined that late claim relief is
available for such actions (see, Monroe v State of New York
, Ct Cl. June
9, 2003, Midey Jr., J., Claim No. None, Motion No. M-66389 [UID No.
2003-009-21]; see also, Wright v State of New York
, Ct Cl, March 26,
2003, Patti, J., Claim No. 104699, Motion No. M-65879 [UID No.
Contrary to defendant's assertion, 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, 981) and none of the factors can require denial as a matter of law.
Therefore, after weighing and considering all of the factors 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-67392 is hereby GRANTED; and claimant is directed to
file and serve his proposed claim, properly verified, 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.