New York State Court of Claims

New York State Court of Claims

PRISTELL v. THE STATE OF NEW YORK, #2005-019-501, Claim No. NONE, Motion No. M-69453


Claimant's motion for permission to file a late bailment claim is denied.

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:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
January 18, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


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 motion.

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]).[1] 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.

January 18, 2005
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-69453, dated November 24, 2004, and filed December 7, 2004.
  2. Affidavit of Henry Pristell, in support of motion, sworn to November 30, 2004, with attached exhibits.
  3. Proposed Claim, dated November 24, 2004.
  4. Affirmation of Geoffrey B. Rossi, AAG, in opposition to motion, dated December 29, 2004, and filed January 3, 2005, with attached exhibits.

[1]Selected unreported decisions from the Court of Claims are available via the Internet at