New York State Court of Claims

New York State Court of Claims

CULBREATH v. THE STATE OF NEW YORK, #2004-019-525, Claim No. NONE, Motion No. M-67963


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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 1, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for permission to file a late claim pursuant to Court of Claims Act ("CCA") 10 (6). The defendant State of New York (hereinafter "State") takes no position on this motion.

Claimant alleges he was wrongfully confined to special housing units at Elmira Correctional Facility and Southport Correctional Facility for 210 days between November 21, 2002 through June 19, 2003, the date of his release back into the general population. A prior claim based upon these same allegations was previously dismissed as untimely. (Culbreath v State of New York, Ct Cl, December 19, 2003, Lebous, J., Claim No. 108338, Motion Nos. M-67678 and CM-67738 [UID No. 2003-019-578]).[1]

As a threshold issue, the court notes that it has jurisdiction to review and determine this motion since it was filed within two years from the date the claim accrued which is the date the confinement ended, here June 19, 2003. (CCA 10 [6]; Ramirez v State of New York, 171 Misc 2d 677). This motion is timely since it was filed within two years of that date.

The factors that the court must consider in determining a properly framed CCA 10 (6) motion are whether:
1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,

3. the State had an opportunity to investigate the circumstances underlying the claim,

4. the claim appears to be meritorious,

5. the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State, and

6. the claimant has any other available remedy.

The issue of whether the proposed claim appears meritorious has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, a claimant must establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. (Id. at 11). It is well-settled that "[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). Here, the State has not denied or contradicted any of claimant's allegations and, as such, the court finds that the proposed claim appears to be meritorious.

With respect to the delay in filing the claim, claimant blames the Clerk of the Court in holding his papers for three weeks before returning them due to a failure to include a filing fee reduction application. It was incumbent upon claimant to submit the proper papers to the Clerk of the Court in the first instance. The court finds this factor weighs against claimant.

Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors and may be considered together since they involve analogous considerations. The State has failed to address these factors which the court deems as a concession that it had notice of the essential facts and an opportunity to investigate. Accordingly, the court also finds that there is no substantial prejudice to the State due to the late filing. Consequently, this court finds these three factors weigh in claimant's favor.

Finally, claimant alleges that he has no other available remedy. Again, the State fails to address this issue. The court finds that this factor weighs in claimant's favor.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the court finds that five of the six factors, including the all important factor of merit, weigh in favor of claimant's motion for permission to file a late claim pursuant to CCA 10 (6).

Accordingly, for the reasons stated above, it is ORDERED that the Claimant's motion for permission to file a late claim, Motion No. M-67963, is GRANTED. Claimant shall file a claim with the Clerk of the Court and serve a copy of the claim upon the attorney general within sixty (60) days from the date of filing of this Decision and Order with the Clerk of this Court. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court with particular reference to CCA 10, 11 and 11-a.[2]

March 1, 2004
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with this motion:
  1. "Motion for Permission to File a Late Claim", Motion No. M-67963, dated January 9, 2004, and filed January 16, 2004.
  2. Proposed Claim, dated January 9, 2004, with attached exhibits.
  3. Affirmation of Joseph F. Romani, AAG, in response to motion, dated February 18, 2004, and filed February 20, 2004.

[1]Unreported decisions from the Court of Claims are available via the Internet at
[2]Claimant is not entitled to a credit for the filing fee paid in connection with his previously dismissed claim.