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
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
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.