New York State Court of Claims

New York State Court of Claims

BONET v. THE STATE OF NEW YORK, #2004-019-544, Claim No. NONE, Motion No. M-68332


Case Information

PEDRO BONET, 95-A-3153
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: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 7, 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 (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion in part.

This proposed claim sounds in bailment.[1] Claimant alleges that approximately 84 items of his personal property, primarily books and/or magazines, were lost on July 2, 2003 when he was transferred from one cell to another at Southport Correctional Facility (hereinafter "Southport"). Claimant filed an inmate grievance regarding his lost items on or about September 22, 2003. Claimant's grievance was denied on November 25, 2003. Claimant's appeal was rejected on December 3, 2003.

As such, the date on which claimant is deemed to have exhausted his administrative remedies is December 3, 2003. Accordingly, claimant had 120 days from said date to serve and file his claim, namely April 1, 2004 pursuant to CCA 10 (9). No claim was ever filed or served within said time period.[2] Consequently, claimant now seeks permission to file a late claim for his lost property allegedly valued at $779.64, together with attorney fees of $5,000.00, certified mail costs of $50.00, photocopying costs of $100.00, and court fees of $250.00.

The factors 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. there is any other available remedy.

The court will first examine the factor that has been characterized as the most decisive component in determining a late filing motion, namely whether the proposed claim appears meritorious. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). In order to establish a meritorious claim, 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). The State does not dispute that claimant may have a meritorious claim for some lost property, but disputes all the items listed. More specifically, the State argues that claimant may have exceeded the number of books allowed under facility rules and, as such, claimant would not have a valid claim for items possessed in violation of those rules. Additionally, the State disputes the proposed claim to the extent it seeks to recover for attorney fees and costs. The court finds that the State's argument regarding which of the allegedly missing 84 items were authorized under facility rules is an issue best left for a trial, but that claimant has demonstrated that his claim based upon lost property appears to be meritorious for purposes of this motion. However, to the extent that claimant's proposed claim seeks to recover attorney's fees, certified mail costs, photocopying costs, and court fees, that portion of his motion lacks merit. (CCA 27).

Claimant's excuse for his delay is based upon an approximate 5 day delay from March 30, 2004 to April 5, 2004 that he experienced in obtaining photocopies when the machine at the facility law library broke down. As noted by the State, claimant does not explain why he waited from the time the claim accrued on December 3, 2003 until late March 2004 to obtain photocopies. The court finds claimant's excuse to be insufficient. As such, this factor weighs against claimant.

With respect to the other factors of notice, opportunity, prejudice, and alternate remedy, the State concedes that these factors weigh in favor of claimant. (Affirmation of James E. Shoemaker, AAG, ¶ ¶ 11, 13 & 14).

Accordingly, after reviewing and balancing all of the factors enumerated in CCA 10 (6), the court finds that five of the six statutory factors, including the all important issue of merit, weigh in favor of granting claimant's motion for permission to late file, with the exception of his proposed claim for attorney's fees, certified mail costs, photocopying costs, and court fees. Consequently, it is ORDERED that claimant's motion for permission to file a late claim, Motion No. M-68332, is GRANTED IN PART and DENIED IN PART in accordance with the foregoing. Claimant shall file a claim (revised in accordance with this Decision & Order) 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.

June 7, 2004
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-68332, dated April 13, 2004, and filed April 19, 2004.
  2. Affidavit of Pedro Bonet, in support of motion, sworn to April 12, 2004, with attached exhibits.
  3. Proposed Claim, sworn to April 7, 2004.
  4. Affirmation of James E. Shoemaker, AAG, dated May 13, 2004, and filed May 17, 2004, with attached exhibits.

[1]The court is treating the claim annexed to claimant's papers as an exhibit as the proposed claim herein.
[2]Claimant served a notice of intention on or about September 26, 2003. However, the service of a notice of intention relative to a bailment claim is of no legal consequence since the enactment of CCA 10 (9). (Cepeda v State of New York, Ct Cl, October 22, 2001, Midey, Jr., J, Claim No. 104717, Motion No. M-64015 [UID No. 2001-009-049]). Selected unreported decisions from the Court of Claims are available via the Internet at