New York State Court of Claims

New York State Court of Claims

FONTAINE v. THE STATE OF NEW YORK, #2004-030-569, Claim No. M-68767


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:
Third-party defendant's attorney:

Signature date:
August 30, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 3, were read and considered on Claimant's motion

for permission to late file his claim brought pursuant to Court of Claims Act §10(6):
1,2 Motion for Permission to File Late Claim by Walles Fontaine, Claimant; Proposed Claim with attachment
  1. Affirmation by J. Gardner Ryan, Assistant Attorney General
After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:
In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).
Additionally, the motion must be timely brought in order to allow that a late claim be filed ". . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . . " Court of Claims Act § 10(6). Here, the applicable statute of limitations is three (3) years, thus the motion is timely. Civil Practice Law and Rules §214.
Walles Fontaine alleges in his proposed Claim that Defendant's agents negligently allowed his personal property to be stolen by his roommate, an inmate named Rodriguez, in a "double man cell" at Green Haven Correctional Facility (hereafter Green Haven) on November 7, 2003. On that date he was removed from his program and escorted back to his cell where he was strip searched, and the cell was searched and inventoried as well. When the search was completed he was first told to lock in, and then shortly thereafter removed and placed in the shower area while Rodriguez was brought to the cell to retrieve his personal property. Claimant asserts that it was then that Rodriguez stole Claimant's property because of the negligent supervision of correction officers. He does not state what the officers did or failed to do or how their actions or inactions could have prevented the alleged theft.
Court of Claims Act §10(9) provides that an inmate's claim for loss of personal property may not be filed until the administrative remedies provided by the applicable regulations have been exhausted. [See 7 NYCRR Part 1700]. Thereafter, ". . . [s]uch claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy." Court of Claims Act §10(9).
Claimant has appended a copy of his facility claim [See 7 NYCRR Part 1700] listing the items allegedly stolen and indicates that the facility claim was denied on March 13, 2004. The Court notes that although the portion of the facility claim form where the inmate indicates an intent to appeal is filled out, the appeal review portion where the Superintendent or his designee approves or disapproves the appeal is not completed, therefore it is unclear whether indeed Claimant exhausted his administrative remedies.
In terms of the factors the Court must consider in deciding an application for permission to serve and file a late claim, Claimant indicates that the delay is excusable because he is a layman, and was given bad advice by an inmate law clerk to the effect that he should not file any Notice of Intention because the facility might offer him a settlement. He states that the Defendant has notice in that Green Haven officials have been investigating his claim throughout the period from November 7, 2003 to March 13, 2004, and a fully developed record is available. Claimant asserts he has no other available remedy.
A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit. See e.g Jackson v State of New York, Claim No. NONE, Motion No. M-64481 (Midey, J., February 28, 2002).
His mere incarceration and movement within the system, and any asserted difficulty in obtaining representation by counsel or otherwise conferring with counsel, does not constitute a reasonable excuse. See Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl 1978). Similarly, his claim of lack of knowledge of the law does not constitute an acceptable excuse. Innis v State of New York, 92 AD2d 606 (2d Dept 1983), affd 60 NY2d 654 (1983); Musto v State of New York, 156 AD2d 962 (4th Dept 1990). Relying on the advice of non-lawyers is also not a sufficient excuse for failing to timely serve and file a claim.
The absence of an excuse, however, is but one of the factors to be considered and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, supra.
The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting Claimant's motion. Any documentation of the incident would presumably be maintained by Defendant's agents, including the facility claim and inventory forms. As is clear from the time frames noted above, the passage of time has not been so great that the State's ability to investigate is impeded to its prejudice. Cf. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and and two and one-half months from date of accrual). Accordingly, these factors weigh in favor of granting the motion.
As noted, Claimant need not establish his claim prima facie, but rather show the appearance of merit. Jackson v State of New York, supra. Claimant has not made the requisite showing of merit in order to permit late filing of his claim.
This claim is essentially one alleging negligence by the alleged bailee in a bailment created between Defendant and Claimant by delivery of Claimant's personal property into the custody of Defendant's employees. See generally Claflin v Meyer, 75 NY 260 (1878); Ahlers v State of New York, (Claim No. 82543, Corbett, P.J., December 23, 1991). The State has a duty to secure an inmate's personal property. Pollard v State of New York, 173 AD2d 906 (3d Dept 1991). A delivery of property to the bailee, and the latter's failure to return it, satisfies Claimant's burden of establishing a prima facie case of negligence. The bailee is then required to come forward with evidence to "overcome the presumption." Weinberg v D-M Rest. Corp., 60 AD2d 550 (1st Dept 1977). "Where a bailment is created, a showing that the . . . [property was] delivered to the bailee and returned in a damaged condition establishes a prima facie case of negligence and the burden shifts to the bailee to demonstrate that it exercised ordinary care . . . (citation omitted)" Board of Educ. of Ellenville Cent. School v Herb's Dodge Sales & Serv., 79 AD2d 1049,1050 (3d Dept 1981).
With respect to value, Claimant must satisfy the court of the fair market value of the items in question. Phillips v Catania, 155 AD2d 866 (4th Dept 1989); Schaffner v Pierce, 75 Misc 2d 21 (NY Dist Ct 1973). Receipts are the best evidence of fair market value, although uncontradicted testimony concerning replacement value may also be acceptable.
A Claimant must also show that he has exhausted his administrative remedies in connection with his bailment claim.
Here, Claimant has not established that he owned the specific property, its value, that there was delivery, or what acts of negligence the State performed or failed to perform. Indeed, in the facility claim form he appends to the proposed claim, the rationale for the denial is that Claimant did not establish that he owned the listed property. It is unclear whether Claimant exhausted his administrative remedies.
Moreover, Claimant has an alternate remedy against inmate Rodriguez, if he stole his property as alleged.
After considering the factors set forth under the statute, on balance they weigh against allowing Claimant permission to serve and file a late claim. Accordingly, Claimant's motion number M-68767 is hereby in all respects denied.

August 30, 2004
White Plains, New York

Judge of the Court of Claims