New York State Court of Claims

New York State Court of Claims

MORRIS v. THE STATE OF NEW YORK, #2003-019-561, Claim No. NONE, Motion No. M-67313


Claimant's motion for permission to file a late claim for loss of personal property is granted; court finds that CCA 10 (6) relief is available for bailment claims under CCA 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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 9, 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.

This proposed claim sounds in bailment. Claimant alleges that on February 19, 2002 he was transferred from Elmira Correctional Facility (hereinafter "Elmira") to Clinton Correctional Facility (hereinafter "Clinton"). Upon arrival at Clinton, claimant asserts that he discovered that two of his four bags of personal property were missing and that his television was left behind in Elmira.

Claimant filed two separate inmate grievances regarding these items. The first grievance relating to the two missing property bags dated February 26, 2002 was assigned Inmate Claim No. 020-251-01 (hereinafter "Grievance #1"). Upon an initial review, Grievance #1 was approved for the sum of $40.00 which claimant rejected and appealed. After appeal review, Grievance #1 was approved in the amount of $50.00 on December 5, 2002. Claimant rejected that settlement offer and seeks permission to file the instant proposed claim for $1,278.35 in damages.

The second grievance relating to the missing television dated March 17, 2002 was assigned Inmate Claim No. 020-250-01 (hereinafter "Grievance #2"). Upon an initial review, Grievance #2 was disapproved which adverse determination claimant appealed. After the appeal review, Grievance #2 was approved in the amount of $10.00 on October 7, 2002. Due to his dissatisfaction with said award, claimant seeks permission to include this item in his proposed late claim as well.[1]

The dates on which claimant is deemed to have exhausted his administrative remedies are the respective dates that his appeals were determined, namely October 7, 2002 and December 5, 2002. Accordingly, claimant had 120 days from those dates to serve and file his claim, namely February 4, 2003 and April 4, 2003, respectively.[2] No claim was ever filed or served within those time periods,[3] so claimant now moves for permission to file a late claim pursuant to CCA 10 (6).

As a threshold matter, the court will address the State's sole basis for opposing this motion. The State asserts that CCA 10 (6) is not authorized for bailment claims citing, without argument or a supporting memoranda of law, McCann v State of New York, 194 Misc 2d 340. In McCann, the court determined that because CCA 10 (9) contains no express reference to applications for late filing a 10 (6) remedy is not available for inmate bailment claims. However, after McCann, two other Court of Claims decisions have reached contrary conclusions, 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] and 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]). This court has reviewed each of these decisions and finds that excluding CCA 10 (9) claims from the relief afforded by CCA 10 (6) is not warranted for the reasons set forth in the Wright and Monroe decisions.

The court will turn now to the substance of claimant's 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.

Initially, the court notes that the State chose to rely solely on the aforementioned argument and has not submitted any arguments relative to these statutory factors.

The court will first examine the factor that has been characterized as the most decisive component in determining a late filing, namely whether the proposed claim appears meritorious. (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). There are no opposing papers disputing that these items were not lost. From this record, the court cannot determine whether or not the awards were adequate and, as such, will give claimant the benefit and conclude that his proposed claim has merit.

Claimant's excuse for his delay is twofold, namely a delay by officials at Wende Correctional Facility (hereinafter "Wende") in assigning an Inmate Law Clerk to assist him in filing a property claim and his inability to read and write English. In support of this first contention, claimant has submitted a letter from Margaret O'Bryan, Corrections Counselor, Special Needs Unit at Wende stating that within the first few days of claimant's arrival at Wende he requested assistance, but due to the shortage of Inmate Law Clerks there was a significant delay. However, the court notes that Ms. O'Bryan indicates that claimant arrived at Wende on May 8, 2003, a date which is beyond the expiration of the 120 day time periods applicable to these claims under CCA 10 (9). In other words, claimant had already missed the statutory time period under CCA 10 (9) and the shortage of law clerks at Wende had no bearing on his delay in filing a claim.[4] Moreover, claimant's inability to read or write English is not a viable excuse. (Rodrigues v State of New York, 143 AD2d 993; Calderon v State of New York, Ct Cl., April 11, 2002, Sise, J., Claim No. None, Motion No. M-64765 [UID No. 2002-028-022]). As such, this factor weighs against claimant.

With respect to the other four factors of notice, opportunity, prejudice, and alternate remedy, in light of the State's failure to raise any opposing arguments, the court finds these factors weigh in claimant's favor.

Accordingly, after reviewing and balancing all of the factors enumerated in CCA 10 (6), the court finds that five of the six statutory factors, including the all important issue of merit, weigh in favor of granting claimant's motion for permission to late file. Consequently, it is ORDERED that claimant's motion for permission to file a late claim, Motion No. M-67313, is GRANTED. Claimant shall file a claim with the Clerk of the Court and serve a copy of the claim upon the attorney general within sixty (60) days from the date of filing of this Decision and Order with the Clerk of this Court. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the court with particular reference to CCA 10, 11 and 11-a.

October 9, 2003
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-67313, dated August 19, 2003, and filed August 27, 2003.
  2. Affidavit of Tracy Morris, in support of motion, sworn to August 19, 2003, with attached exhibits.
  3. Proposed Claim, unsigned and undated.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated September 17, 2003, and filed September 19, 2003.

Claimant's request for damages of $1,278.35 does not include a separately stated amount attributable to the television, but the court will presume the stated amount to include damages for the television.

CCA 10 (9) mandates that:
[a] claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.
The court also notes that claimant served two Notices of Intention upon the Attorney General's office on or about April 15, 2002. The service of a notice of intention relative to a bailment claim is of no legal consequence since the enactment of CCA 10 (9). (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]). Selected unreported decisions from the Court of Claims are available via the Internet at
Note that the excuse must relate to the delay in filing a claim, not just the delay, if any, in filing a motion requesting 10 (6) relief.