Filed Papers: Claim
Upon the foregoing papers, this motion and
cross-motion are both granted.
The Defendant seeks dismissal of the claim as
being untimely served and filed. The claim sounds in bailment relating to the
alleged loss of personal property by an inmate in a correctional facility and is
governed by Court of Claims Act §10(9).
A brief chronology is helpful.
The claim alleges that Claimant became aware of the alleged loss of his personal
property and filed an Inmate Claim Form dated October 6, 2002, and then amended
his administrative claim on October 16, 2002 (Exhibit A appended to the claim).
A notice of intention to file a claim was served upon the Defendant on January
6, 2003. On January 21, 2003, Claimant’s institutional claim was denied
(Exhibit C appended to the claim). Claimant appealed, and, by memorandum dated
March 14, 2003 (Exhibit N appended to the claim), his appeal was denied, thus
exhausting his administrative remedies.
Pursuant to Section 10(9), a claim
based upon an alleged loss of personal property by an inmate must be served and
filed within 120 days after exhaustion of the administrative remedy. Section
10(9) makes no provision for serving a notice of intention and thus may not be
relied upon to extend the time within which a claim must be filed and served
(Gloster v State of New York
, Ct Cl, #2002-011-550 [Claim No. 103662 -
Motion No. M-64877], June 5, 2002, McNamara, J.).
Thus, in addition to Defendant’s argument that the notice of intention was
prematurely served prior to the exhaustion of administrative remedies, it has no
bearing on an inmate’s bailment claim.
The Defendant argues that the
claim accrued on March 14, 2003, the date of the denial of Claimant’s last
administrative remedy (issuance date), and since it was served and filed on July
23, 2003, more than 120 days after exhaustion of the administrative remedy, it
is untimely. Claimant urges a different accrual date, March 25, 2003, the date
he received notice of the appeal determination (notification date), and if
measured from that date, the claim is timely.
Judges of this Court have
utilized both starting dates, generally without a discussion of the
distinctions. However, in McCullough v State of New York
#2003-019-502 [Claim No. 106814 - Motion No. M-66098] Jan. 15, 2003), Judge
Ferris D. Lebous observed that “...the proper trigger date is the date of
the superintendent’s denial. To the extent that some courts have found
that the date of notification of the denial governs, Claimant has not appeared
to present this argument nor offered any proof that any other alternate date is
applicable [citations omitted].”
Claimant does present that very
argument, and, of course, it matters. If measured from the notification date,
the claim is timely, and Defendant’s motion to dismiss would be denied.
Consequently a determination of which date constitutes exhaustion is
The discordant opinions regarding which date starts the 120-day
clock needs harmony. There does not appear to be any discernible legislative
guidance on this question. One may speculate that the Court of Claims
Act’s 120-day period is analogous to proceedings under CPLR article 78
since, unlike any other provision in the Court of Claims Act, it is triggered by
the exhaustion of administrative remedies. In article 78 proceedings, time is
measured “within four months after the determination to be reviewed
becomes ‘final and binding upon the petitioner’ (CPLR 217; New
York State Assn. of Counties v Axelrod
, 78 NY2d 158, 165).... when the
petitioner seeking review has been aggrieved by it” (Matter of Yarbough
, 95 NY2d 342, 346). Before one embraces this analogy, in enacting
Section 10(9), the legislature did not select the four-month period familiar to
practitioners in article 78 proceedings, but specified a more distinctive
120-day period. Since the legislature intentionally selected a unique time
period to apply Section 9, I am disinclined to analogize judicial
interpretations of timeliness in article 78 proceedings.
One might infer
that, because the service and filing periods for all other torts under the Court
of Claims Act are measured by the shorter 90-day period from accrual of the
causes of action (Sections 10, , [3-a] and [3-b]; also see Section 11),
the legislature provided inmates with an extra thirty days to allow for any
delay between the issue date of the superintendent’s denial and the
The legislature’s utilization of the specific
measurement of 120 days, rather than the more vague four-month period, and
intentional addition of 30 days to the traditional 90-day period for torts,
permits the inference that the exactness of the issuance date of the denial of
the administrative remedy is an analogous specific measure of time and
preferable to the more elusive date of actual notification to a inmate, or, for
that matter the date of mailing.
For the sake of clarity, and for the specificity that the date of issuance
provides, I find that the 120-day period should be measured from the date of the
denial of the administrative appeal, not from the date of notification or the
date of mailing. Section 10(9) already provides an inmate a greater period in
which to act than any other tort, and, in the absence of legislative guidance to
the contrary, I can divine no reason to extend it even further.
the claim was untimely served and filed, the motion is granted and the claim is
In response to the motion, Claimant makes a cross-motion for
permission to file a late claim pursuant to Court of Claims Act
Preliminarily, the Defendant questions the availability of late claim relief
here, relying primarily on McCann v State of New York
(194 Misc 2d 340),
and in effect, seeks to have me revisit my conclusions articulated in Wright
v State of New York
(195 Misc 2d 597). With due respect to
Defendant’s earnest arguments, I am disinclined to find contrarily in the
absence of appellate guidance. The Defendant’s opposition was limited to
the viability of a late claim remedy, not the merits of the
Claimant correctly notes that this action is not barred under
the provisions of CPLR article 2, and properly appends a proposed claim. In
reviewing the merits of the motion, Claimant’s excuse for failing to
timely serve and file this claim in essence disputes the actual date of the
exhaustion of his administrative remedy, to wit, whether it is the issuance date
of the denial or the notification date, and given my dismissal of the claim
above, may be characterized as ignorance of the law. Whether this provides an
adequate excuse, given the differing decisions by different judges may be
argued, but one need not satisfy all six statutory criteria to be successful
(Bay Terrace Coop. Section IV v New York State Employees’ Retirement
Sys. Policemen’s and Firemen’s Retirement Sys.
, 55 NY2d 979).
Claimant notes that the underlying cause of action sounding in bailment accrued
on October 3, 2002, that he submitted an institutional claim on October 6, 2002
and an amendment thereto on October 16, 2002, and served a notice of intention
to file a claim by certified mail, return receipt requested, on January 6, 2003.
At the very least, these submissions demonstrate notice of the essential facts
underlying the claim, the opportunity for Defendant to have investigated, and
the absence of prejudice should this motion be granted. Claimant has no
alternative remedy. As to the appearance of meritoriousness, the allegations of
property missent or missing in the course of Claimant’s transfer from
Orleans Correctional Facility to Collins Correctional Facility, as well as
allegations relating to disbursements for shipping fees, at least bear the
appearance of merit (Matter of Santana v New York State Thruway
, 92 Misc 2d 1, 11). Claimant of course still has the burden of
establishing the losses and the values thereof, and the Defendant’s
culpability, etc., at a trial of this claim.
Accordingly, after balancing
the statutory factors and reviewing the proposed claim, the cross-motion is
granted and Claimant may serve and file his proposed late claim, as required by
the Court of Claims Act and Rules, within 45 days of service of a file-stamped
copy of this order. The Clerk is directed to serve the parties