Claimant moves for "[a]n Order pursuant to Article-II § 10 (9), as
amended, of the Court of Claims Act to file this Claim nunc pro tunc...."
(Notice of Motion). The State of New York (hereinafter "State") opposes the
The proposed claim asserts a bailment claim. It appears that claimant filed
two inmate claim forms. Claimant's first inmate claim form was dated April 17,
2002 and was disapproved on August 5, 2002. Claimant's appeal of the adverse
determination was disapproved on August 14, 2002. (Claimant's Exhibit A).
Claimant's second inmate claim was dated February 4, 2003 and denied on March
21, 2003. Claimant's appeal of this second claim was disapproved on March 31,
2003. (Claimant's Exhibit B).
By all accounts, claimant served a notice of intention upon the Office of the
Attorney General on April 4, 2003. (Claimant's Exhibit E). Additionally,
claimant appears to have filed a letter complaint regarding the outcome of his
inmate appeals with the Department of Correctional Services in Albany.
(Claimant's Exhibit C). By way of letter dated June 1, 2004, the Department of
Correctional Services advised claimant that he had already pursued and exhausted
the facility level review and appeal procedures. Said letter also referenced
the 120-day deadline for filing and serving a claim in the Court of Claims,
although it did not indicate when such deadline would have commenced.
(Claimant's Exhibit D).
Finally, claimant appears to have served a copy of the proposed claim annexed
to his papers herein upon the Office of the Attorney General on December 7, 2004
by certified mail, return receipt requested. There is no record that this
proposed claim was otherwise filed with the Clerk of the Court other than as an
attachment to these motion papers.
Now, by way of this motion claimant seeks "[a]n Order pursuant to
Article-II § 10 (9), as amended, of the Court of Claims Act to file
this Claim nunc pro tunc...." (Notice of Motion). Although claimant references
CCA 10 (9), he proceeds to undertake an analysis of the six factors associated
with an application seeking permission to file a late claim set forth in CCA 10
(6). As such, the court will treat claimant's papers as a motion seeking
permission to file a late claim pursuant to CCA 10 (6). However, the Fourth
Department has recently determined that late claim relief under CCA 10 (6) is
not available to bailment claims accruing under CCA § 10 (9). (Roberts
v State of New York, 11 AD3d 1000). Since the doctrine of stare decisis
requires trial courts to follow precedents from other Appellate Divisions until
such time as either the Court of Appeals or the applicable Appellate Division,
here the Third Department, order to the contrary, this court is bound by the
holding in Roberts. (Mountain View Coach Lines v Storms, 102 AD2d
663, 664). Accordingly, this court does not have the authority to consider the
within application seeking late claim relief in connection with a bailment
claim. For that reason the court must deny claimant's motion for leave to late
file and serve his claim and need not reach the merits of his application.
Furthermore, the court notes that the service of a notice of intention in
connection to a bailment claim is of no legal consequence. (Cepeda v State
of New York
, Ct Cl, October 22, 2001, Midey, Jr., J, Claim No. 104717,
Motion No. M-64015 [UID No. 2001-009-049]).
Finally, it has been held that because CCA 10 (9) does not contain any reference
to notices of intention, any relief available under CCA 10 (8) (which allows a
notice of intention to be deemed the claim in certain circumstances) is not
available. (Gloster v State of New York
, Ct Cl, June 5, 2002, McNamara,
J., Claim No. 103662, Motion No. M-64877 [UID # 2002-011-550]).
Accordingly, for the reasons stated above, it is ORDERED that claimant's motion
for permission to file a late claim, Motion No. M-69453 is DENIED.