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.
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.
Notice of Motion No. M-69720, dated February 5, 2005, and filed February 9,
Affidavit of Hector Lopez, in support of motion, sworn to February 2, 2005,
with attached exhibits.
Proposed Claim, sworn to February 2, 2005.
Affirmation of Geoffrey B. Rossi, AAG, in opposition to motion, dated March 16,
2005, and filed March 18, 2005, with attached exhibits.
Reply Affidavit, of Hector Lopez, sworn to March 21, 2005, and filed March 28,
2005, with attached exhibits.