New York State Court of Claims

New York State Court of Claims

STURDIVANT v. THE STATE OF NEW YORK, #2004-030-601, Claim No. NONE, Motion No. M-69184


Synopsis



Case Information

UID:
2004-030-601
Claimant(s):
CHARLES STURDIVANT
Claimant short name:
STURDIVANT
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-69184
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
CHARLES STURDIVANT, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
December 10, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read and considered on Claimant's motion


for permission to serve and file a late claim brought pursuant to Court of Claims Act §10(6):

1-3 Notice of Motion; Motion for Permission to file a late claim by Charles Sturdivant, Claimant; proposed Claim

  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General
Charles Sturdivant alleges in his proposed Claim that Defendant's agents lost his property when he was transferred internally to the special housing unit (SHU) at Green Haven Correctional Facility (hereafter Green Haven). [Claim, ¶ 4 A]. He states that on or about March 21, 2004 he left his property in his cell, and did not see any of the items he lists in his claim again. [Claim, ¶ 4 B,C]. Although he indicates he filed an institutional claim, he does not append a copy nor does it appear that his administrative remedies have been exhausted relative to the institutional claim. [Claim ¶ 7].

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.

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). Notably, after some dispute at the trial court level concerning whether late claim relief was available for inmate bailment claims, [cf. Wright v State of New York, 195 Misc 2d 597 (Ct Cl 2003), revd, 11 AD3d 1000 (4th Dept 2004); McCann v State of New York, 194 Misc 2d 340 (Ct Cl 2002)], there is now appellate authority determining that late claim relief is not available under Court of Claims Act §10(6) for such claims. See Roberts v State of New York, 11 AD3d 1000 (4th Dept 2004). Accordingly, this Court is constrained against considering this application, which must be denied.

Motion Number M-69184 is in all respects denied.

December 10, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims