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
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
Movant's application appears to seek permission to file a bailment claim based
upon his statement in his Notice of intention to File a
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). 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
. 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
, 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
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.