New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2003-019-514, Claim No. NONE, Motion No. M-66244


Claimant's motion for permission to file late claim relative to intentional mail tampering within correctional facility is denied.

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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
February 18, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-66244, undated, and filed January 2, 2003.
  2. Affidavit of Mark A. Smith, in support of motion, sworn to December 2, 2002.
  3. Proposed Claim, sworn to December 2, 2002.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated February 3, 2003, and filed February 5, 2003, with attached exhibit.

Claimant alleges that on July 7, 2002 a correction officer at Southport Correctional Facility (hereinafter "Facility") deliberately destroyed his legal mail in retaliation for prior complaints made against him. More specifically, Claimant alleges that the correction officer who was collecting mail "[p]roceeded to take one or two of claimant's legal letters, fold them up and place them in his pocket and tell claimant to go ahead and write that up as nothing was going to happen just like the last time." (Proposed Claim, ¶ 5). The proposed claim refers to negligence, deliberate indifference and constitutional violations.

Before proceeding, the Court must address the nature of the underlying cause of action. Although Claimant attempts to couch his proposed claim in terms of negligence, this Court finds that the essence of these allegations are the intentional acts of the named correction officer. It is well-settled that "[a]llegations of intentional conduct cannot form the basis of a claim founded in negligence [citations omitted]." (Dunn v Brown, 261 AD2d 432, 433). As such, in this Court's view, the true nature of this action is an intentional tort.

Next, the Court notes that it has the jurisdiction to hear and determine this matter since the motion was filed within one year from the date of accrual which is the comparable time period for bringing an intentional tort action against a citizen of the state. (CCA 10 [3-b]; 10 [6]; & CPLR 215).

Turning to the substance of the motion, the factors the Court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances underlying the claim,

4. the claim appears to be meritorious,
5. the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State, and

6. there is any other available remedy.

The Court will first examine the factor that has been characterized as the most decisive component in determining a motion under CCA 10 (6), namely whether the proposed claim appears meritorious, since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). In order to establish a meritorious claim, Claimant must establish 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. (Id. at 11).

Although not cited by Claimant, it appears he is arguing that this correction officer intentionally violated 7 NYCRR part 721 which sets forth the procedures for the handling of inmate legal mail. Here, the State has not denied or contradicted these allegations with an affidavit from someone with first hand knowledge. As such, the Court will accept Claimant's allegations as true for purposes of this motion which in turn appears to establish a prima facie violation of said regulation. (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). However, it is well-settled that while the violation of a regulation or directive "[m]ay establish a standard of care and violation of the standard may lead to liability if a common law or statutory duty is breached...", it does not impliedly create a cause of action for money damages. (A. Rabb Alamin/R. Price v State of New York, Ct Cl, April 26, 1999, McNamara, J., Claim No. 98122, p 2). Consequently, there is no reason for allowing a private cause of action for money damages in a situation such as this when an Article 78 and/or inmate grievance process were available. (Campolito v State of New York , Ct Cl, April 27, 2000, Collins, J., Claim No. 94670 [UID No. 2000-015-507]).[1] Moreover, Claimant's attempt to fit this proposed claim within a constitutional tort theory of liability must also fail. In other words, remedies will not be implied when, as is the case here, Claimant's "[c]onstitutional tort allegations may be analogized to an existing common-law tort[s] for which there are adequate alternate remedies". (Augat v State of New York, 244 AD2d 835, 837, lv denied 91 NY2d 814). In view of the foregoing, this Court finds that the proposed claim does not appear meritorious.

With respect to the remaining factors, Claimant has failed to offer any excuse for his delay. As such, the absence of an excusable delay weighs against Claimant.

The next three factors of notice of the essential facts, opportunity to investigate and substantial prejudice are typically discussed together, inasmuch as they involve analogous considerations. Claimant argues that the State had actual notice and opportunity from the grievance he filed the day following the incident with regard to this matter. The State argues that said grievance did not adequately apprise it of the nature of Claimant's allegations relating to negligent supervision. However, CCA 10 (6) requires that the notice relate to the essential facts, not necessarily the theory of liability. As such, the Court finds that the State had notice and an opportunity to investigate this matter based upon Claimant's grievance. With respect to prejudice, the State argues that eyewitnesses mentioned in the grievance are no longer available. However, the State does not argue that the correction officer is no longer available. Consequently, the Court finds that the State would not suffer substantial prejudice were the relief granted. Accordingly, the Court finds that these three factors weigh in Claimant's favor.

Finally, Claimant argues he has no alternate remedy. To the contrary, the alternate remedies include the inmate grievance procedure, as well as an Article 78 proceeding. The Court finds this factor weighs against Claimant.

Accordingly, upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that three of the six statutory factors, including the all important issue of merit, weigh against Claimant's motion for permission to late file.

In view of the foregoing, IT IS ORDERED that Claimant's motion for permission to file a late claim, Motion No. M-66244, is DENIED.

February 18, 2003
Binghamton, New York

Judge of the Court of Claims

[1]Unreported decisions from the Court of Claims are available via the Internet at