New York State Court of Claims

New York State Court of Claims

SHEILS v. THE STATE OF NEW YORK, #2004-032-097, Claim No. N/A, Motion Nos. M-68546, M-68862


Synopsis


A second motion for permission to late file, brought because claimant inadvertently failed to comply with a prior order granting 60 days in which to file and serve his claim, is granted. Claimant's default was not intentional.


Case Information

UID:
2004-032-097
Claimant(s):
KEVIN SHEILS
Claimant short name:
SHEILS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
N/A
Motion number(s):
M-68546, M-68862
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Kevin Sheils, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Saul Aronson, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
November 22, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Both of these motions relate to a prior decision and order of this Court in which claimant's motion for permission to file an untimely claim (Court of Claims Act §10[6]) was granted (Motion No. M-67592). The proposed claim contained specific allegations of harassment and abuse by nine correction officers at Clinton Correctional Facility on July 26, 2003. By the terms of that decision and order, claimant was to file and serve his claim within 60 days after the decision was filed, or by April 26, 2004.[1] The claim was not filed or served by that deadline.

Claimant states that on April 10, 2004, his then fiancee after a visit with him at the prison, took with her an original and copies of his claim (Sheils affidavit I, ¶5).[2] Apparently she did not mail the claim as he had anticipated, and when he wrote to the Clerk of the Court on May 9, 2004 (id., Exhibit B), he was informed that no claim had been received (id., Exhibit C). Realizing that he had failed to comply with the decision and order issued in Motion No. M-67592, claimant once again applied for permission to late file (Motion No. M-68546).

In the meantime, it appears that claimant's former fiancee belatedly decided to send to the Court some of the papers he had given to her. These were received by the Clerk's office and designated Motion No. M-68862. The documents supporting this motion were executed in March 2004, which supports claimant's account of events. When he received defendant's second affidavit in opposition to a motion, claimant realized what had happened and requested that the Court "disregard" Motion No. M-68862 and proceed only with the motion to late file, Motion No. M-68546.

Although counsel for defendant urges that this second motion to late file be denied, on the ground that claimant had his chance to file a claim and failed to do so, the Court sees no reason to deprive him of an opportunity to pursue his claim. The statutory factors that were considered in the earlier motion brought pursuant to Court of Claims Act §10(6) are unchanged, and claimant's account of the events that resulted in his claim not being filed in accordance with the prior order are clearly set forth and supported on the record. It does not appear that his default was intentional.

Motion No. M-68546 is granted, and claimant is directed to file and serve a claim identical to the proposed claim submitted in support of this motion in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within sixty (60) days after this order is filed. Motion No. M-68862 is denied as moot.




November 22, 2004
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on claimant's motion for permission to file an untimely claim (Motion No. M-68546) and claimant's motion for "leave to file supplemental complaint" (Motion No. M-68862):

Motion No. M-68546
1. Notice of Motion and Supporting Affidavit of Kevin Sheils, pro se, with annexed Proposed Claim and Exhibits

2. Affirmation in Opposition of Saul Aronson, Esq., AAG

Motion No. M-68862

1. Notice of Motion with annexed Proposed Claim

2. Affirmation in Opposition of Saul Aronson, Esq., AAG

3. Letter of Kevin Sheils, pro se, requesting that Motion No. M-68862 be withdrawn

Filed papers: Decision and Order, Motion No. M-67592, dated February 17, 2004, filed February 25, 2004, Hard, J.





[1]See § 20 of the General Construction Law.
[2] According to claimant, he had had trouble with the delivery of mail sent from the facility to another court and preferred to have these documents sent from outside by his fiancee.