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,
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.
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
. 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
, Paragraph 24]; and $250,000.00 in punitive relief. [Ibid,
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 "...at 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
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
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
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
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
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.