New York State Court of Claims

New York State Court of Claims

FINGER v. THE STATE OF NEW YORK, #2003-031-065, Claim No. None, Motion No. M-66730


Claimant's motion papers are defective. His motion for permission to file a late claim 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:
New York State Attorney General
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 20, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed April 16, 2003;
2. Claimant's "Affidavit," sworn to March 12, 2003, with attached exhibits;
3. Affidavit of Wendy E. Morcio, Esq., sworn to May 27, 2003;
4. Supplemental Affidavit of Wendy E. Morcio, Esq., sworn to May 29, 2003, with attached exhibit;
5. Claimant's supplemental affidavit, sworn to June 9, 2003. Claimant Wayne E. Finger has moved, pursuant to Court of Claims Act ("CCA") § 10(6), for an order granting him leave to file a late Claim, alleging loss of certain personal property at Gowanda Correctional Facility on October 25, 2001.

Claimant alleges that he filed two administrative claims regarding this lost property. The first administrative claim was filed on October 27, 2001, and was denied on November 7, 2001. Claimant appealed this decision and his appeal was denied on November 23, 2001. Claimant does not specifically allege, but implies that, at least with regard to this first administrative claim, his administrative remedies have been exhausted as required by § 10(9) of the CCA. Apparently Claimant then initiated, or attempted to initiate, another administrative claim relating to the same events. However, in this second claim, filed on December 2, 2001, though he identified the same dates, the value of the property lost was changed from $28.77 to $1,054.19. In his motion papers, Claimant asserts that the values represent $1,370.00 for his lost legal work and $400.00 for his lost photographs. Though it is not clear, Claimant apparently seeks to add these values to the loss stated in his second claim of $1,054.19. Claimant has submitted an unsigned claim form in an attempt to document that this second claim was filed. There is no indication that this second claim was received by agents of Defendant and, indeed, Defendant denies that it ever received such an administrative claim.

Complicating this matter further is the fact that Claimant's affidavit refers to certain documents as attached to his submission which are not, in fact, attached. For instance, Claimant refers to a personal property transfer form to demonstrate the property in his possession at the time of the alleged loss. He also refers to a letter received by the Deputy Superintendent of Administration concerning his second administrative claim. Though it appears that Defendant received these documents, neither is attached to Claimant's submission to the Court. Most importantly, Claimant has also failed to attach a proposed claim to his submission.

Defendant opposes Claimant's application, asserting that Claimant has failed to set forth any excuse for his delay in filing, that Claimant has failed to exhaust his administrative remedies, and that the Court does not have the authority to grant permission to file a late claim when the proposed claim in question relates to an inmate's lost personal property.

Subdivision 6 of §10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979). However, it would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (see e.g. Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729).

Defendant correctly points out that Claimant has failed to demonstrate a legally cognizable excuse for his delay in filing a claim. I also find Defendant's argument that Claimant has failed to demonstrate merit to his proposed claim persuasive. From Claimant's submissions, it is difficult, at best, to determine what Claimant has lost and whether or not Claimant exhausted his administrative remedies as required by CCA § 10(9). These shortcomings must be construed against Claimant.

Significantly, while upon proper motion, this Court has discretion to permit late filing based upon the factors identified above, §10(6) of the CCA requires that "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application." Indeed, the Claimant must attach a copy of the proposed claim before this Court can exercise its discretion on the application. Claimant has failed to attach a proposed claim with his submissions to the Court. This defect alone warrants denial of Claimant's motion.

Therefore, for the reasons set forth above, it is hereby,

ORDERED, that Claimant's motion for permission to file a late claim in this matter is denied.

August 20, 2003
Rochester, New York

Judge of the Court of Claims