New York State Court of Claims

New York State Court of Claims

MILTON v. THE STATE OF NEW YORK, #2004-031-042, , Motion No. M-67479


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:
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.New York State Attorney General
Third-party defendant's attorney:

Signature date:
March 11, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 8, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed October 3, 2003;
2. Claimant's Affidavit, sworn to September 30, 2003;
3. Affirmation of James L. Gelormini, Esq., dated November 14, 2003;
4. Claimant's Affidavit, sworn to December 2, 2003, with attached exhibit;
5. Supplemental Affirmation of James L. Gelormini, Esq., dated January 16, 2004, with attached exhibit;
6. Affidavit of Lorraine Bunn, sworn to January 13, 2004, with attached exhibits;
7. Corrected Supplemental Affirmation of James L. Gelormini, Esq., dated January 27, 2004;
  1. Claimant's unsworn statement, denominated "Supplemental Claim," filed January 26, 2004, with attached exhibit. This is the motion of Lovell Milton for permission to file a late claim pursuant to § 10(6) of the Court of Claims Act (the "CCA"). In his proposed claim for illegal confinement, Mr. Milton alleges that, on November 13, 2002[1], he received an Inmate Misbehavior Report ("IMR") authored by Correction Officer Lorraine Bunn. The IMR charged Claimant with various violations of inmate disciplinary rules related to Claimant's attempts to obtain personal information about three women to whom he is not related. Claimant alleges that Defendant must have improperly opened his outgoing mail to learn of his improper inquiries. He alleges that, pursuant to 7 NYCRR § 720.3[e], an inmate's outgoing mail cannot be monitored without express written authorization from the Superintendent of the Facility. Claimant alleges that, because the Superintendent did not authorize the monitoring of his mail, the evidence against him, considered at his disciplinary hearing, was improperly accepted by the Hearing Officer. Claimant seeks $18,250.00 in damages as a result of his alleged illegal confinement.
Subdivision 6 of § 10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

In its opposition to this motion, Defendant disputes only the merit of Claimant's proposed claim. The other five factors are, therefore, presumed to weigh in the Claimant's favor (see Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024). However, of the six enumerated factors in CCA § 10(6), it is the appearance of merit that is most significant, as it would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (see e.g. Prusack v State of New York, 117 AD2d 729).

Defendant argues with regard to merit that the Superintendent of Gowanda Correctional Facility had, in fact, authorized the monitoring of Claimant's incoming and outgoing non-legal mail pursuant to 7 NYCRR § 720.3[e] during the relevant period. A copy of these "Mail Watch" authorizations are attached to the affidavit of Officer Lorraine Bunn as Exhibit 3. Moreover, Officer Bunn indicates that it was not, in fact, the monitoring of Clamant's mail which led to the IMR of which he complains. Rather, the incriminating evidence against Claimant was discovered during a search of Claimant's cell (Bunn Affidavit Paragraph 3). I find that Defendant has demonstrated that Mr. Milton's proposed claim is entirely without merit.

Accordingly, upon weighing all of the factors enumerated in CCA § 10(6), I find that they weigh in Defendant's favor, and it is hereby,

ORDERED, that Claimant's motion is denied.

March 11, 2004
Rochester, New York

Judge of the Court of Claims

[1]Though Claimant's submissions are somewhat confusing, it appears the Inmate Misbehavior Report was written on October 17, 2002, reviewed on November 12, 2002, and delivered to Claimant on November 13, 2002.