New York State Court of Claims

New York State Court of Claims

LaTOUR v. THE STATE OF NEW YORK, #2003-030-505, Claim No. 106067, Motion Nos. M-66029, M-65929


Defendant's Motion to Dismiss Claim granted. Claimant's Motion to amend claim denied as moot. Claimant's Motion to late file Claim 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):
M-66029, M-65929
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
February 10, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant's motion to dismiss the Claim pursuant to Court of Claims Act §§10 and 11 [M-65929], and Claimant's motion for permission to file a late claim [M-66029], are considered together because both papers submitted on each motion refer to matters in the other motion.[1] The following papers, numbered 1 to 9, were read :
1,2 Notice of Motion, Affirmation of Jeane L. Strickland Smith, Assistant Attorney General, dated October 16, 2002, and accompanying exhibits

  1. Affirmation in Opposition (sic) to Defendant's Motion, and in Reply to Defendant's Affirmation in Opposition to Claimant's motion to file a late claim of Jeffery B. LaTour sworn to December 5, 2002, and accompanying exhibits
4,5,6 Notice of Motion to amend pleading and/or file a late claim, Affidavit of Jeffery B. LaTour sworn to October 8, 2002, and accompanying exhibits, Memorandum of Law

  1. Affirmation in Opposition to motion to file late claim by Jeane L. Strickland Smith, Assistant Attorney General, dated November 18, 2002, and accompanying exhibits
8,9 Filed papers: Claim Number 106067, Answer

After carefully considering the papers submitted and the applicable law, the motions are disposed of as follows:
Claim Number 106067 contains seven counts. Jeffery B. LaTour, the Claimant herein, alleges in Count One of the Claim, that Defendant's agents violated his Constitutional and civil rights by obstructing his access to the courts and his receipt of legal mail addressed to him at Downstate Correctional Facility (hereafter Downstate) sent by his father via United Parcel Service express service, when such mail was refused by the facility on October 10, 2001. The Claim also asserts other counts concerning an alleged failure to allow Claimant access to a photocopier to submit a motion to the Appellate Division on October 13, 2001 (Count Two); alleged obstruction of access to the courts on October 18, 2001 because of Defendant's alleged failure to allow him the use of the copy machine absent monies in his inmate account (Count Three); alleged failure to afford him the equal protection of the law and obstruction of access to the courts on October 26, 2001 when Claimant was notified that his inmate account had been encumbered pursuant to a departmental directive (Count Four); alleged failure to provide the equal protection of the law during "...months of December of 2001 and January of 2002...." in refusing to reimburse Claimant for monies expended to pursue remedies resulting from the unlawful refusal of legal mail (Count Five); alleged assault by a correction officer on December 21, 2001 resulting in violation of §137(5) of the Correction Law and failure to provide equal protection under the law (Count Six); and alleged obstruction of access to the courts at some unspecified time when Claimant was required to transcribe a cassette tape - that was a court document - because of a prohibition in the facility "...prohibiting cassette tapes manufactured with screws...." (Count Seven). [Defendant's Affirmation dated October 16, 2002, Exhibit "2"].

Defendant states that on or about November 30, 2001 a Notice of Intention - asserting no specific accrual date, but indicating that Claimant's father mailed a parcel to Claimant on October 9, 2001, and indicating that the Claim involved the Defendant's agents refusal to accept that mail - was served upon the Attorney General's office by regular mail. [Ibid, Exhibit "1"]. The Claim itself - a document Claimant entitled "Complaint" - was served on the Attorney General's office by certified mail, return receipt requested on May 28, 2002. [Ibid, Exhibit "2"]. Defendant seeks dismissal of the claim based upon Claimant's failure to serve the Notice of Intention as required by statute - thus failing to toll the statute of limitations - and the concomitant untimely service of the Claim itself.

A Claim against the State of New York must be served and filed within ninety (90) days of its accrual [Court of Claims Act §10], unless a Notice of Intention has been properly served upon the Attorney General within that time frame enlarging the time within which to file the Claim. Court of Claims Act §11(a)(i) provides that both the Notice of Intention and the Claim must be served personally or by certified mail, return receipt requested, within the time frames provided. Lack of proper service renders the claim jurisdictionally defective, in that the statute provides in pertinent part "...[n]o judgment shall be granted in favor of any claimant unless such claimant shall have complied with the provisions of this section applicable to his claim..." [Court of Claims Act § 10]. The filing and service requirements contained in §§10 and 11 of the Court of Claims Act are jurisdictional in nature and must be strictly construed. Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723 (1989) See, also, Welch v State of New York, 286 AD2d 496, 729 NYS2d 527, 529 (2d Dept 2001); Conner v State of New York, 268 AD2d 706, 707 (3d Dept 2000).

In the Affirmation in Opposition submitted by Claimant he indicates that a second Notice of Intention was served on the Attorney General on January 9, 2002 by certified mail, return receipt requested, "...on the 90th day of accrual of the claim, see exhibit A annexed herewith." [Claimant's Affirmation in Opposition sworn to December 5, 2002, Paragraph 3]. He also concedes that the "...incidents raised in Counts 2-7 can only be heard by the Court by leave under Court of Claims Act §10(6)...." [Ibid, Paragraph 4]. The Notice of Intention Claimant avers was received on January 9, 2002 recites the same information contained in the earlier one, and contains a jurat indicating that the Notice of Intention was sworn to on November 23, 2001. [Ibid, Exhibit "A"]. Claimant has included a photocopy of a return receipt for certified mail directed to the Attorney General's Office indicating receipt of a document by that office on January 9, 2002. [Id].

Since the Defendant has not rebutted Claimant's prima facie showing that a Notice of Intention was received on that date, the Court accepts the Claimant's statement that a second Notice of Intention was served on January 9, 2002. Nonetheless, by this Court's calculations [See, General Construction Law §§19, 20], the Notice of Intention does not operate to toll the statute of limitations with respect to the first count of the Claim because it was not served within (90) days of the accrual date of October 10, 2001, but rather within ninety-one (91) days. The Court does not have jurisdiction over the allegations contained in count one of the claim.

Additionally, the Court does not have jurisdiction over the allegations contained in counts two through seven of the claim - as conceded by Claimant in his papers - and that portion of the Claim is hereby dismissed. A timely Notice of Intention describing the facts alleged in those counts was not served and, based upon the dates of accrual contained therein, the claim itself was not served and filed within the appropriate time constraints. Claim Number 106067 is therefore dismissed in its entirety.
This application has been rendered moot based upon the Court's dismissal of the Claim.
Claimant has appended as Exhibit "A" a document entitled "Second Amended Claim", which the Court will treat as the proposed claim for late claim purposes. [Claimant's Affidavit sworn to October 8, 2002, Exhibit "A"][2]. As noted, this document will be treated as the proposed claim. It is also noted that Claimant has included an additional document [hereinafter referred to as Additional Affidavit] at pages 8 through 16 of Exhibit "A" that appears to be a more expansive description of the facts underlying the original Claim Number 106067 concerning refusal of mail on October 10, 2001, as well as another document entitled "Application for Relief and Demands" at pages 17 through 20. The "Application for Relief and Demands" sets forth claims for injunctive relief and declarative relief with respect to changes in departmental policy, as well as claims for money damages referable to the expenses he states he incurred in sending material to the Appellate Division - apparently not yet expended since he has not sent an additional motion to the Appellate Division [See, "Application for Relief and Demands", Paragraph 23]; a reasonable amount to "cover the costs of litigation..." or $350.00 [Ibid, Paragraph 24]; and $250,000.00 in punitive relief. [Ibid, Paragraph 28].

In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in §10(6) of the Court of Claims Act. The factors stated 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, e.g., Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed " any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules...." § 10(6) Court of Claims Act. Here, the applicable statute of limitations is three (3) years, thus the motion is timely. §214 Civil Practice Law and Rules.

A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit. See, e.g., Jackson v State of New York, Claim No. NONE, M-64481, Midey, J., filed February 28, 2002.

Based upon the accrual dates of October 10, 2001 (Count One), October 13, 2001 (Count Two), October 18, 2001 (Count Three), October 26, 2001 (Count Four), December, 2001 and January 2002 (Count Five), and December 21, 2001 (Count Six), it has been at least a year since these asserted claims accrued.

Count One alleges that mail sent to Claimant by his father concerning an appeal Claimant was pursuing in the Appellate Division, Third Department, was refused by correction officers at Downstate on October 10, 2001. Claimant asserts that because of the refusal, he missed an appeal deadline of October 22, 2001. He alleges violations of Civil Rights Law §§79(2) and 79-c and the New York State Constitution, as well as violation of New York State Department of Correctional Services' (hereafter DOCS) regulations [7 NYCRR parts 720, 721, 722] and DOCS' directives numbered 4015, 4421, 4422 and 4911.

Count Two alleges that when Claimant arrived at Ulster Correctional Facility on October 13, 2001, although he was assisted in accessing the law library he was denied access to a photocopier to copy papers he needed to submit for a motion to the Appellate Division requesting an extension of time within which to perfect an appeal. Because of that lack of access, he was unable to submit the motion to the Appellate Division in a timely fashion. This allegedly violated his right of access to the courts as defined in DOCS' directive 4483, Civil Rights Law §79(2) and Article 1 §§ 5, 8 and 11 of the New York State Constitution.

Count Three states that on October 18, 2001 when Claimant arrived at Lakeview Shock Incarceration Correctional Facility (hereafter Lakeview) he again attempted to obtain copies of a motion to extend the time required to perfect his appeal in the Appellate Division but was told that his monies would not arrive at the facility for at least two weeks and that therefore there was no money available for copies. Claimant asserts this is a violation of DOCS' directive 4483, Civil Rights Law §79(2) and Article 1 §§ 5, 8, and 11 of the New York State Constitution.

Count Four alleges that on October 26, 2001 Claimant was notified that monies in his institutional account had been encumbered pursuant to DOCS' directive 2788. He alleges that when he "attempted to communicate with officials that ran the business office at Lakeview to allow for an advance under...[DOCS'] directive #4483, so...[he] could motion the court for an extension to perfect the appeal and, was denied...", this again was an alleged violation of his rights under Civil Rights Law §79(2) and Article 1 §§5, 8, 11 of the New York State Constitution.

Count Five states that "...[d]uring the months of December of 2001 and January of 2002, Sgt. Walters, institutional steward Paula Dean and Superintendent of Wyoming Correctional Facility refused to reimburse the plaintiff for money lost by the plaintiff due to mail that was unlawfully refused by Downstate Correctional Facility...." This would seem to be a description of a denied property loss claim. Claimant includes allegations in this count of violation of "USCA Title 18 Chapter 83, §§1693, 1701...." Civil Rights Law §79(2) and Article 1 §§5, 8 and 11 of the New York State Constitution.

Count Six alleges violation of Correction Law §137(5), and states that on December 21, 2001 Claimant indicates he met with Sgt. Walters concerning Wyoming Correctional Facility's refusal of his legal mail. The underlying facts do not appear to be fully stated in this count because of what may be a missing page referred to earlier.

The only argument Claimant makes here with respect to reasonable excuse, is that he served a Notice of Intention on January 9, 2002 rendering the filing of the claim in May, 2002 timely, and that the applicable statute of limitations is Court of Claims Act §10(9) concerning personal property loss claims. Since Claimant has not, however, indicated the final timing of any pursuit of a facility claim - except the reference to having filed a grievance while incarcerated at Lakeview [See, Additional Affidavit, Paragraph 16] - there is no way of telling whether he has exhausted his administrative remedies in any event and, if so, whether a cause of action concerning such remedy will lie.[3] Claimant has essentially provided no explanation as to why his claim was untimely relevant to the issue of reasonable excuse. Accordingly, Claimant has made no showing of reasonable excuse, therefore this factor weighs against him.

The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh against Claimant's motion. Any documentation of the incidents would presumably be maintained by Defendant's agents, if there had been any facility claims filed. However, and as stated above, Claimant has not discussed the relevant particulars of any facility claim. Given the lack of clarity of the counts alleged, it would seem that overall the passage of time - here at least a year - has been so great that the State's ability to investigate is impeded to its prejudice. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one-half months from date of accrual). Accordingly, these factors weigh against Claimant.

As noted, Claimant need not establish his claim prima facie, but rather show the appearance of merit. Jackson v State of New York, supra. If the allegations in the claim are accepted as true for the purposes of the motion, Claimant has still not made a requisite showing of merit in order to permit late filing of his claim.

Treatment of inmate mail that is classified as "general correspondence", is governed by the Inmate Correspondence Program codified at 7 NYCRR Part 720. Mail classified as "privileged correspondence" is governed by 7 NYCRR Part 721. The mail at issue, as described by Claimant in the Additional Affidavit attached to the proposed claim, was shipped via United Parcel Service (hereafter UPS) by his father to Claimant at Downstate. He claims it was marked "legal mail" and arrived in "bulk form." [Additional Affidavit, ¶¶ 6, 10, 11]. Correction officers refused the mail. It appears Claimant was transferred to Ulster Correctional Facility and/or Lakeview and it was at one of these locations that he learned that his mail had been refused at Downstate. He states he filed a grievance, but does not indicate what happened with respect to any grievances.

As described, provisions of the Inmate Correspondence Program pertinent to general correspondence would apply to Claimant's mail. Other than his own assertions that the item was marked legal mail, or that it was refused for some ulterior purpose, Claimant has provided no substantiation of his claim. The exhibits he filed in support of the earlier motion before Judge Waldon, appended as an exhibit to Defendant's present motion to dismiss, show that Claimant was told on January 29, 2002 - presumably as part of the grievance process - that the two boxes of legal mail were received at Downstate on October 10, 2001 at 7:51 p.m., when the package room was closed. [Affirmation in Support (M-65929) by Jeane L. Strickland Smith, Assistant Attorney General, Exhibit "4"]. The package was not accepted because there was no location to secure the mail and Claimant was in draft status, and had been packed up for transfer to Lakeview. [Id]. [See, generally, 7 NYCRR Part 722]. The packages were returned to the sender - Claimant's father. Whatever deadlines were missed as a result do not create a cause of action in the Court of Claims.

Access to law libraries and copy machines are clearly within the scope of a facility's entitlement to regulate the time, place, and manner of their use. Rivera v State of New York, Claim No. 106263, M-65583, Lebous, J., filed September 6, 2002. Actions for damages emanating from a denial of grievances filed regarding lack of library service or access and purported violation of State and Federal Constitutional rights simply do not lie in the Court of Claims. See, Jacobs v State of New York, 193 Misc 2d 413, (Ct Cl 2002); Lorusso v State of New York, Claim No. 105112, M-64394, Sise, J., filed March 1, 2002; Gagne v State of New York, Claim No. 98686, M-63259, Patti, J., filed November 30, 2001. "There is no ‘abstract, free-standing right to a law library or legal assistance' (Lewis v Casey, 518 US 343, 351)....[Making legal and related materials available in prisons is] a reasonable alternative ‘to assure meaningful access to the courts' (Bounds v Smith, 430 US 817, 830)." People v Cabrera, 259 AD2d 1007 (4th Dept 1999). In any event, Claimant has not shown any damage actionable in the Court of Claims.

There is no indication that the alleged appeal in the Appellate Division has been foreclosed, indeed Claimant states in one of the submitted documents that he has "...prepared another motion for an extension however has not sent the motion to the Appellate Division due to the cassette tape obstruction..." ["Application for Relief and Demands", Paragraph 23]. Accordingly, the Claimant has not shown the appearance of merit to his claim.

Finally, with respect to alternative remedies, the proper vehicle for either asserting alleged violations of federal constitutional rights are to be brought in federal court, and applications for the injunctive or declaratory relief sought cannot be brought in the Court of Claims, and more properly belong as part of a federal claim or a special proceeding brought pursuant to Article 78 of the Civil Practice Law and Rules.

Upon reviewing and balancing all the factors listed in Court of Claims Act §10(6) the Court finds that they weigh against Claimant's motion for permission to late file a claim and it is, therefore, denied.

Accordingly, Claimant's motion to late file his claim M-66029 is denied.

February 10, 2003
White Plains, New York

Judge of the Court of Claims

  1. [1] The Court notes that in a prior Decision and Order concerning this Claim denying Claimant's application to serve and file a claim pursuant to §306-b of the Civil Practice Law and Rules - a provision inapplicable in the Court of Claims - Judge Waldon said that the determination was without prejudice to Claimant either filing a motion for permission to serve and file a late claim, or to Defendant moving to dismiss on jurisdictional grounds. [See, LaTour v State of New York, Claim No. 106067, M-65490, Waldon, J., September 3, 2002]. These intermingled sets of papers followed.
[2] Exhibit A contains six counts, but appears to have a page missing that might have included a seventh count given the context and the break in page numbering from page "5" to page "7". Certainly in the earlier complaint Claimant filed some reference was made in its Count Seven to problems with a cassette tape recording, however, no such allegations are contained in the document now submitted to the Court and, therefore, none shall be reviewed.
[3] Again, in the Additional Affidavit it appears he may have pursued a facility claim involving reimbursement of the postage spent by his father on the alleged mail refusal of October 10, 2001, but there is no indication as to when it was finally determined if at all.