New York State Court of Claims

New York State Court of Claims

KALTEUX v. THE STATE OF NEW YORK , #2004-028-524, Claim No. NONE, Motion No. M-67796


Synopsis


Case Information

UID:
2004-028-524
Claimant(s):
WILLIAM P. KALTEUX
Claimant short name:
KALTEUX
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-67796
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
WILLIAM P. KALTEUX, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Kathleen M. ResnickAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 28, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Movant's application pursuant to Court of Claims Act § 10(6):


1) Notice of Motion and Supporting Affidavit of William P. Kalteux (Kalteux Affidavit)

filed December 18, 2003 with annexed Exhibits A-B;

2) Affirmation in Opposition of Assistant Attorney General Kathleen M. Resnick (Resnick Affirmation) filed January 20, 2004 with annexed Exhibit A.

Movant's application appears to seek permission to file a bailment claim based upon his statement in his Notice of intention to File a Claim[1] that he left Coxsackie Correctional Facility with eight bags and only seven arrived at Mt. McGregor Correctional Facility (Kalteux Affidavit, Exhibit A).

A bailment claim is subject to a three-year statute of limitations which commences when the bailee refuses to deliver the property when demanded by the bailor. Here, Movant asserts his Claim accrued on August 21, 2003 (Kalteux Affidavit ¶ 1) and as such, his application for permission to late file his claim is timely filed within the relevant statute of limitations provided by Article 2 of the CPLR.

Movant's application only addresses the factors of excuse for the delay, notice and opportunity to investigate and lack of an alternative remedy and Movant did not address the factor of merit nor has he attached a proposed claim to his moving papers (see Court of Claims Act § 10[6]). Defendant opposes the application on all the statutory factors.

The motion must be denied. First, as noted, there is no proposed claim appended to the moving papers, and as such there is no proposed pleading for the Court to consider[2]. Moreover, were the Court able to reach the merits of the application and consider the statutory factors (see generally, Matter of Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Coop. Section IV v New York State Employees' Retirement System, Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981) , Movant's offer of his ignorance of the Court's requirements is not a reasonable excuse for the delay in filing his Claim (see Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654; Hall v State of New York, 85 AD2d 835) and the bare allegation that one less bag arrived at Mt. McGregor CF, without more, does not set forth a bailment claim that has the appearance of merit (see Witko v State of New York, 212 AD2d 889). The lack of reasonable excuse coupled with a claim of dubious merit warrants denial of the application (see Matter of Perez v State of New York, 293 AD2d 918, 919; Matter of Lynch v State of New York, 2 AD3d 1002, 1003). Upon review of the statutory factors, the Court would in any event decline to exercise its discretion and would deny the application for permission to late file a claim.

Accordingly, Movant's motion is denied.



April 28, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims





[1] Movant did not serve the Attorney General with his Notice of Intention but rather attempted to file it with the Court necessitating the instant application.
[2] Movant's exhibits provide no additional detail, such as the I-64 form, from which the Court could, were it inclined to do so, glean the parameters of the alleged bailment.