New York State Court of Claims

New York State Court of Claims

CANNON, SR. v. THE STATE OF NEW YORK, #2004-032-106, Claim No. N/A, Motion No. M-68981


Motion for permission to file an untimely claim is denied as movant's criminal prosecution and defense were carried out by County, not State, officials and New York's Freedom of Information Law does not give rise to a private right of action for money damages.

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:
Mark E. Cannon, Sr., Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
November 23, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion for permission to file an untimely claim, pursuant to section 10(6) of the Court of Claims Act. The substantive portion of movant's proposed claim reads, in its entirety, as follows:
On January 17, 2001, I was sentenced to prison for 6 mo, 5 yr. Then sent to prison for 1 to 3 yr in an State prison. Going on statements alone, the State of New York District Attorney Rensselaer County Hon. Patrick McGrath sentence me to prison. This was all done without any real evidence, such as Doctor statements or any other medical proof. Case #00-0336 Rap [illegible]. I have FOIL'd the D.A. for statement concerning the case. I was denied this information dated 6/20/04, 7/8/04, 7/14/04. I am appealing that. I ask my attorney Arthur Glass, Public Defender's Office Rensselaer County Court House for the same information, date 7/10/04, 8/3/04. No response. Arthur Glass did not motion the D.A. to show evidence like ask him to that way he is [illegible] in my claim. I feel I was done wrong by him and the D.A.
In an accompanying document captioned "Notice of Intention to File A Claim," movant states that, in his opinion, these officials' delay in giving him the information that he has sought by way of the Freedom of Information Law (FOIL) is "a sign of guilt" on the part of the District Attorney and Public Defender Glass.

Defendant has made no submission in opposition to this motion, sending instead a letter indicating that the State was never served with the motion papers. The Court is also in receipt of a letter from movant's attorney, Assistant Public Defender Arthur F. Glass, Jr., who states that his office is working to comply with movant's FOIL request.

In determining a motion for permission to file a late claim, the Court must consider the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act. As a general proposition, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]). On the other hand, the factor of the proposed claim's apparent merit can be an exception to this rule, because permitting a defective claim to be filed, even if the other factors supported the granting of movant's motion, would be meaningless and futile (Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967 [Ct Cl 1982]). In the instant case, it is not necessary to require movant to serve defendant so that defense counsel can address this motion, for it is apparent on its face that the proposed claim does not state a cause of action for money damages against the State.

Both the District Attorney and the Public Defender were serving as officers of the County of Rensselaer, not the State of New York, when they, respectively, prosecuted movant and provided him with a defense. If movant feels that his trial was unfair or that he was convicted on insufficient evidence, the proper course of action is for him to move for a new trial and/or to appeal the conviction. To the extent that movant may be seeking to recover money damages for the officials' delay in responding to his FOIL request, there is no private cause of action for a violation of the Freedom of Information Law (Public Officers Law, Article 6, §§ 84-90) (Warburton v State of New York, 173 Misc 2d 879 [Ct Cl, 1997]; see also Yip v Board of Trustees of State University of New York, 2004 WL 2202594 [W.D.N.Y. Sep 29, 2004]). In the event that a FOIL request is wrongfully withheld, judicial review may be obtained and sanctions imposed by way of an Article 78 proceeding commenced in Supreme Court (Public Officers Law §89[4]).

The threshold for establishing that a proposed claim has sufficient appearance of merit to warrant allowing it to be filed is quite low. A movant need only establish that the claim is not patently groundless, frivolous, or legally defective and 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, 11 [Ct Cl 1977]). Here, the proposed claim does not meet this threshold, and consequently it would be an abuse of discretion to permit it to be filed.

Movant's motion is denied.

November 23, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on movant's motion for permission to file an untimely claim:
1. Notice of Motion with attachments;

2. Letter of Paul F. Cagino, Esq., AAG, indicating non-service of motion;

3. Letter of Arthur F. Glass, Jr., Esq., Rensselaer County Assistant Public Defender;

4. Reply Letter of Mark E. Cannon, Sr., pro se;

Filed papers: None