New York State Court of Claims

New York State Court of Claims

PULLIAM v. THE STATE OF NEW YORK, #2003-030-524, Claim No. None, Motion No. M-66129


Motion for permission to file late claim granted.

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:
Third-party defendant's attorney:

Signature date:
March 26, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 7, were read and considered on Claimant's motion

for leave to file a late claim:

1, 2, 3, 4 Notice of Motion, Proposed Claim, Affidavit in Support, supplement to Affidavit in Support, supporting exhibits

5, 6 Affirmation by Elyse J. Angelico, Assistant Attorney General, supporting exhibits,

  1. Filed papers: Pulliam v State of New York, Motion Number M-65333, filed August 8, 2002, Scuccimarra, J.
Claimant seeks leave to assert a bailment claim alleging that Defendant's agents lost some of his property upon his transfer from one correctional facility to another. The proposed claim is annexed to Claimant's moving papers. [See, Exhibit "B"]. He asserts in his proposed claim that on June 17, 2001 his property was packed by officials at Sing Sing Correctional Facility (hereafter Sing Sing) for his transfer to Shawangunk Correctional Facility (hereafter Shawangunk). After his transfer to Shawangunk, only some of his property arrived. He alleges he filed a facility claim concerning the loss of property on or about June 26, 2001.

A prior motion seeking late claim relief had been denied by this Court on August 8, 2002. At the time, Claimant had not yet exhausted his administrative remedies as required, and the proposed claim was therefore not untimely.

In her Affirmation in response to Claimant's motion, the Assistant Attorney General indicates that claimant was offered a settlement of $50.00 on June 3, 2002, which he then rejected. The State's records show the facility claim was thus closed on August 22, 2002 by Claimant's rejection of the offer of settlement. [See, Defendant's Exhibit "B"].

Court of Claims Act §10(9) provides that an inmate's claim for loss of personal property may not be filed until the administrative remedies provided by the applicable regulations have been exhausted. [See, 7 NYCRR Part 1700]. Thereafter, "...[s]uch claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy." Court of Claims Act §10(9).

This inmate's administrative remedies were exhausted on August 22, 2002. He was then required to serve and file his claim within one hundred twenty (120) days of that date, or on or before December 20, 2002. The Assistant Attorney General indicates that the Attorney General's Office was served with a copy of this motion, with all papers attached including the proposed claim, by certified mail return receipt requested on December 2, 2002. The motion was stamped "filed" in the Office of the Chief Clerk of the Court of Claims on December 3, 2002: also within the statute of limitations period.

Claimant's proposed claim states - as is required - the time and place where the alleged injury arose, the nature of the claim, and the total of damages claimed to have been sustained. See, Court of Claims Act §11(b). The proposed claim is verified as required. [Id]. The Attorney General's Office has served an Answer.

Clearly, had Claimant simply filed the proposed Claim with the appropriate filing fee [See, Court of Claims Act §11-a; 22 NYCRR §206.5-b(a)], and proof of service in the Office of the Chief Clerk of the Court of Claims when he served and filed this motion, there would be no need to apply for late claim relief. Having failed to do so, he has created his own procedural impediments in that any claim filed now is, indeed, late.

Defendant has not taken a position with respect to the application to serve and file a late claim.

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...." Court of Claims Act §10(6) .

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, Motion No. M-64481, Midey, J., filed February 28, 2002.

Claimant has attached to his proposed claim a list of items he asserts were lost, with alleged values, including a Timex watch; Koss headphones; Holmes oscillating fan; G.P.X. cassette player; hot pot; East Bay white sneakers; Norelco beard trimmer; Brooks jogging sneaker; portable night light; typing supplies including lift-off corrections tape and cassette cartridges; Newports; miscellaneous food items; Casio calculator; and books and magazines. The total he seeks to recover is $1,501.62.

Claimant has not indicated any reasonable excuse for any delay, having essentially filed the same affidavit he had filed in the earlier motion seeking late claim relief at a time when his administrative remedies had not been exhausted. [See, Pulliam v State of New York, Motion No. M-65333, filed August 8, 2002, Scuccimarra, J.]. Ignorance of the law does not excuse delay and is not an acceptable excuse. Innis v State of New York, 92 AD2d 606 (2d Dept 1983), affd, 60 NY2d 654 (1983); Musto v State of New York, 156 AD2d 962 (4th Dept 1990). While the Court appreciates that the Claimant appears to have pursued his administrative remedy with some persistence, once that remedy was exhausted his lack of knowledge of the law with respect to practice in the Court of Claims - and the time for the filing of a claim - is not excusable thus this factor weighs against granting the motion.

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 toward granting Claimant's motion. While it is true that the State is not assumed to have actual knowledge of events giving rise to a claim merely because it owns and runs the facility in which it occurred, any lack of notice is not particularly meaningful in this relatively simple bailment claim. The passage of time has been minimal. The State's ability to investigate is not impeded to its prejudice. cf., Edens v State of New York, 259 AD2d 729 (2d Dept 1999).[1] Claimant's administrative remedy was exhausted on August 22, 2002, and this motion was filed within less than four months, alerting the State. Notably, the State had been made aware of this claim by the earlier motion as well. Accordingly, these factors weigh in favor of granting the motion.

Additionally, Claimant has no other remedy available at this juncture, having exhausted his administrative claim.

As stated, 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 made the requisite showing of merit in order to permit late filing of his claim.

Having considered the relevant statutory factors, the Court finds that the balance of factors weigh in Claimant's favor, and it is therefore

ORDERED, that Claimant's application for permission to file a late claim is granted. Claimant is directed to serve and file his claim in the form annexed to his present application, pursuant to Court of Claims Act §§10, 11, and 11-a within sixty (60) days after this order is filed.

March 26, 2003
White Plains, New York

Judge of the Court of Claims

[1] Two years and two and one-half months from date of accrual inmate sought permission to file late claim alleging assault by fellow inmates. Absence of merit as well.