New York State Court of Claims

New York State Court of Claims

SANDLIN v. THE STATE OF NEW YORK, #2004-019-576, Claim No. NONE, Motion Nos. M-68530, M-68848


Synopsis


Claimant's motion for permission to file a late claim and motion for pre-action discovery are denied.


Case Information

UID:
2004-019-576
Claimant(s):
DANYELL SANDLIN
Claimant short name:
SANDLIN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-68530, M-68848
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
DANYELL SANDLIN, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
September 16, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant moves for permission to file a late claim pursuant to Court of Claims Act 10 (6) (Motion No. M-68530), as well as permission to conduct pre-action discovery (Motion No. M-68848). This court previously adjourned without date claimant's initial attempt at 10 (6) relief due to the illegibility of claimant's handwritten motion papers. (Sandlin v State of New York, Ct Cl, June 8, 2004, Lebous, J., Claim No. None, Motion No. M-68530 [UID No. 2004-019-546]).[1] Claimant has resubmitted his motion papers and so this motion was placed back on the court's calendar, together with his additional motion. The defendant State of New York ("State") opposes claimant's motion to file a late claim, but has not responded to the related motion for pre-action disclosure.

The proposed claim asserts a bailment claim. Claimant alleges that on or about May 23, 2002 he discovered some of his personal property, including legal materials, were missing when he arrived at Five Points Correctional Facility ("Five Points") after a transfer from Southport Correctional Facility ("Southport").

  1. Claimant's motion for permission to file a late claim (Motion No. M-68530)
Bailment claims, as proposed here, are governed by CCA 10 (9) which states as follows:
[a] claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.

(Emphasis added).


In other words, claimant's one hundred twenty day time period within which to file and serve a bailment claim starts once he has exhausted his administrative remedies. The Department of Correctional Services has established a two-tier system for handling personal property claims consisting of an initial review and an appeal. (7 NYCRR 1700.3). Both of these separate and distinct steps must be completed at the time a claim is filed and served in order for a claimant to be deemed to have exhausted his administrative remedies pursuant to CCA 10 (9). (Richards v State of New York, Ct Cl, August 3, 2000, Corbett, J., Claim No. 102440, Motion No. M-61851 [UID No. 2000-005-526]; Christian v State of New York, Ct Cl, May 11, 2001, Midey, J., Claim No. 103806, Motion No. M-63207 [UID No. 2001-009-024]).


Here, based on this record, the court cannot ascertain whether claimant has actually exhausted his administrative remedies. Claimant's motion papers recite that he filed an institutional claim at Five Points and in response was offered a $24.99 settlement which he rejected as insufficient.[2] (Claimant's Affidavit in Support, ¶ 92; Proposed Claim, ¶ ¶ 23-26 ). Claimant then alleges that he "[a]ttempted to appeal the decision but received no response." (Claimant's Affidavit in Support, ¶ 93). However, claimant has not submitted any proof of these steps such as a copy of his inmate claim form and, as such, this court cannot ascertain whether claimant exhausted the administrative remedies available to him pursuant to 7 NYCRR Part 1700 and required by CCA 10 (9). Stated another way, if claimant has not yet exhausted his administrative remedies then the one hundred twenty day time period within which to commence a bailment claim would not have started and 10 (6) relief would be unnecessary.


Consequently, the court finds claimant has not demonstrated that he exhausted the available administrative remedies pursuant to CCA 10 (9) and, as such, claimant's motion for permission to file a late claim will be denied without prejudice.

  1. Claimant's motion for pre-action discovery (Motion No. M-68848)
Claimant has also made an application for an order compelling disclosure prior to the commencement of an action pursuant to CPLR 3102 (c). CPLR 3102 (c) provides in relevant part that "[b]efore an action is commenced, disclosure to aid in bringing an action...[or] to preserve information...may be obtained, but only by court order." A litigant may not use CPLR 3102(c), however, to ascertain whether facts exist which would support a cause of action. Here, claimant lists various items which he seeks by way of pre-action discovery including a facility manual regarding handling of inmate property; any records relative to claimant's transfer from Southport to Five Point; his inmate claim form; records of claimant's purchases of missing property; notice of intention; and the missing property itself. This court finds claimant's request for pre-action discovery to be premature inasmuch as claimant has not yet established he has even exhausted his administrative remedies relating to the underlying claim. Furthermore, assuming claimant ultimately commences a claim he would be entitled to engage in the discovery process just as any other litigant.


Accordingly, for the reasons stated above, it is ORDERED that claimant's motion for permission to file a late claim, Motion No. M-68530 and motion for pre-action discovery, Motion No. M-68848, are DENIED.


September 16, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with these motions:
  1. DECISION AND ORDER, Lebous, J., Claim No. None, Motion No. M-68530, filed June 10, 2004.
  2. Notice of Motion No. M-68530, dated July 20, 2004, and filed July 28, 2004.
  3. Proposed Claim, sworn to June 22, 2004.
  4. Affidavit of Danyell Sandlin, in support of Motion No. M-68530, sworn to June 22, 2004, with attached exhibits.
  5. Affirmation of Joseph F. Romani, AAG, in opposition to Motion No. M-68530, dated August 25, 2004, and filed August 27, 2004, with attached exhibit.
  6. "Affidavit of Special Information In Support of Notice of Motion for Permission to File a Late Claim", of Danyell Sandlin, in support of Motion No. 68530, sworn to August 13, 2004, and filed September 3, 2004.
  7. Notice of Motion No. M-68848, dated July 20, 2004, filed July 28, 2004.
  8. Affidavit of Danyell Sandlin, in support of Motion No. M-68848, sworn to June 22, 2004.
  9. "Affidavit of Supplemental Pleadings In Support of Notice of Motion For Disclosure Prior to Commencement of Action To Aid in Bringing Action", of Danyell Sandlin, in support of Motion No. M-68848, sworn to July 28, 2004, and filed August 2, 2004.
  10. "Affidavit In Response To Affirmation In Opposition To Motion For Permission To File A Late Claim", of Danyell Sandlin, in support of motions, sworn to September 5, 2004, and filed September 15, 2004.

[1]Unreported decisions from the Court of Claims are available via the Internet at

[2]Claimant concedes that he did not serve or file a claim with the court (Claimant's Affidavit, ¶ 26), but does not concede, as alleged by the State, that he never filed an administrative claim. (Affirmation of Joseph F. Romani, AAG, ¶ 6).