New York State Court of Claims

New York State Court of Claims

VAN VLEET v. THE STATE OF NEW YORK, #2004-034-553, , Motion No. M-68264


Synopsis


Permission for leave to file and serve a late is claim is denied. The late claim provisions of Court of Claims Act § 10 (6) are inapplicable to inmate property claims under section 10 (9).

Case Information

UID:
2004-034-553
Claimant(s):
JOSHUA VAN VLEET The caption has been amended sua sponte to reflect the only proper Defendant.
Claimant short name:
VAN VLEET
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended sua sponte to reflect the only proper Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-68264
Cross-motion number(s):

Judge:
MICHAEL E. HUDSON
Claimant's attorney:
JOSHUA VAN VLEET, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 8 , 2004
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following submissions were reviewed on the motion by Claimant for leave to file a late claim:

1. Notice of Motion, undated, filed March 26, 2004;

2. Affidavit of Service By Mail of Joshua Van Vleet, sworn to March 12, 2004;

3. Letter to the Court dated April 13, 2004, from Reynolds E. Hahn, Assistant Attorney General, with copy to Claimant;

4. Claim, verified July 11, 2002, filed October 4, 2002, under Claim No. 106748;

5. Decision and Order (Hudson, J.), filed October 23, 2003, under Claim No. 106748, Motion No. M-67443.


Claimant has filed a notice of motion, without supporting affidavit, wherein he seeks leave of the Court under Court of Claims Act § 10 (6) to file and serve a late claim to recover $460 in damages for the alleged loss of personal property, pursuant to Court of Claims Act § 10 (9). Mr. Van Vleet contends that his property was lost at some point between April 17, 2002, and April 20, 2002, as he was transferred from Clinton Correctional Facility to Attica Correctional Facility, then confined to a Special Housing Unit as part of a disciplinary proceeding. Previously, Claimant had filed a claim seeking the same relief on October 4, 2002,[1] under Claim No. 106748. That action was subsequently dismissed by Decision and Order (Hudson, J.) filed October 23, 2003, based upon Claimant's failure to serve his pleading upon the Attorney General, as required under Court of Claims Act § 11 (a) (i).

The late claim remedies provided within section 10 (6) are inapplicable to inmate property claims under section 10 (9) (Murray v State of New York, Ct Cl, July 2, 2004, Hudson J., Claim No. None, Motion No. M-67997; McCann v State of New York, 194 Misc 2d 340 [2002]; but see Wright v State of New York, 195 Misc 2d 597 [2003]).[2] For that reason the Court must deny Claimant's motion for leave to late file and serve his claim, without reaching the merits of his application pursuant to Court of Claims Act § 10 (6), and without addressing the dispute as to whether Claimant served a copy of the within motion upon the Attorney General. Lastly, the Court notes that Claimant has failed to append a copy of his proposed claim to his motion papers, as required under Court of Claims Act § 10 (6) (see Davis v State of New York, 28 AD2d 609, 610 [1967][addressing former section 10 (5)]; see also Walach v State of New York, 91 Misc 2d 167, 169 [1977] affd 69 AD2d 1015 [1979]).

July 8 , 2004
Buffalo, New York

HON. MICHAEL E. HUDSON
Judge of the Court of Claims



[1] The references within Claimant's notice of motion to a date of November 4, 2002, reflect the date of a letter from the Clerk of the Court to Claimant acknowledging receipt of the claim, and advising of the assignment of Claim No. 106748.
[2] Unpublished decision and orders and selected decisions of the Court of Claims are available at www.nyscourtofclaims.state.ny.us