New York State Court of Claims

New York State Court of Claims

GOVEA v. STATE OF NEW YORK, #2005-018-469, Claim No. NONE, Motion No. M-69781


Synopsis


Motion to file late claim denied, late claim relief is not available for loss of property claims.

Case Information

UID:
2005-018-469
Claimant(s):
RICARDO GOVEA
Claimant short name:
GOVEA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-69781
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
RICARDO GOVEAPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 26, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Movant brings a motion for permission to file a late claim pursuant to Court of Claims

Act § 10(6). Defendant opposes the motion.

Movant, an inmate, asserts in the proposed claim that on August 1, 2004, he was taken to the Special Housing Unit (hereinafter SHU) at Gouverneur Correctional Facility. At that time his belongings in his "cube" were packed by the facility staff. He states that on August 19, 2004, when he had an opportunity to review his property, he determined that 137 pages of his legal paperwork, 12 pictures and 2 photo albums were missing. He asserts that the correction officers were negligent by failing to properly secure his property. Movant states that he filed a claim for lost property with the correctional facility which was denied and disapproved. He appealed the decision to the superintendent, which was also denied on October 6, 2004. There is no indication when Movant received notice that his appeal was denied.[1]

Defendant opposes Movant's request to file a late claim asserting that late claim relief is not available for lost property claims, citing Roberts v State of New York, 11 AD3d 1000. In Roberts v State of New York, the Appellate Division of the Fourth Department found it was error to grant claimant's motion to file a late claim for his loss of personal property while an inmate in a State correctional facility because of the legislature's placement of Court of Claims Act § 10(9). Court of Claims Act § 10(9) provides that an inmate must file and serve a claim for loss of personal property within 120 days after exhausting the administrative remedies established by the Department of Correctional Services. It is found after Court of Claims Act § 10(6), permitting late claim relief where a notice of intention or claim was not served or filed and served in accordance with the "foregoing sections." Since Court of Claims Act § 10(9) is not one of the "foregoing sections" late claim relief is not available for loss of property claims. Although this claim accrued in the Third Judicial Department, the Appellate Division of that Department has not ruled on the issue. As a result, the Court is bound by the finding in Roberts, 11 AD3d at 1000.

Movant's motion is DENIED.


May 26, 2005
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion........................................................................................................1


Affidavit of Ricardo Govea, in support, with exhibits attached thereto.....................2


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney General,

in opposition....................................................................................................3


[1] Without any indication of when Movant received the notice of the denial of his appeal, it is impossible to tell whether his claim was really late when he filed this motion (Court of Claims Act § 10[9]; Blanche v State of New York, 17 AD3d 1069).