New York State Court of Claims

New York State Court of Claims

LOPEZ v. THE STATE OF NEW YORK, #2005-019-522, Claim No. NONE, Motion No. M-69720


Synopsis


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

Case Information

UID:
2005-019-522
Claimant(s):
HECTOR LOPEZ
Claimant short name:
LOPEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-69720
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
HECTOR LOPEZ, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 28, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion. The proposed claim asserts a bailment claim. More specifically, claimant alleges that correction officers at Southport Correctional Facility stole his pair of "Reebok Classic Sneakers" on March 3, 2003. (Proposed Claim, ¶ ¶ 3 & 4).


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). This court is bound by the holding in Roberts under the doctrine of stare decisis, unless and until either the Court of Appeals or the Third Department (the governing Appellate Department here) order to the contrary. (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 a claim and need not reach the merits of his application.


Furthermore, to the extent that claimant may have served a notice of intention in connection with this matter, a notice of intention has no legal consequence in bailment claims. (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] Additionally, 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 either. (Gloster v State of New York, Ct Cl, June 5, 2002, McNamara, J., Claim No. 103662, Motion No. M-64877 [UID No. 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-69720 is DENIED.


March 28, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-69720, dated February 5, 2005, and filed February 9, 2005.
  2. Affidavit of Hector Lopez, in support of motion, sworn to February 2, 2005, with attached exhibits.
  3. Proposed Claim, sworn to February 2, 2005.
  4. Affirmation of Geoffrey B. Rossi, AAG, in opposition to motion, dated March 16, 2005, and filed March 18, 2005, with attached exhibits.
  5. Reply Affidavit, of Hector Lopez, sworn to March 21, 2005, and filed March 28, 2005, with attached exhibits.

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