New York State Court of Claims

New York State Court of Claims

MARSHALL v. THE STATE OF NEW YORK, #2006-016-010, Claim No. 110755, Motion Nos. M-70562, CM-70695


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):
Alan C. Marin
Claimant's attorney:
Steven Marshall, Pro se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Geoffrey B. Rossi, Esq., AAG
Third-party defendant's attorney:

Signature date:
February 15, 2006
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In his claim, Sullivan Correctional Facility inmate Steven Marshall alleges that because of defendant's negligence, two "legal mail" packages that he had requested be sent to the Appellate Division, Second Department and the Kings County District Attorney's office, respectively, were not in fact sent out. Mr. Marshall further alleges that he thus missed the deadline for applying for permission to appeal the denial of his pro se CPL §440.10 motion in his underlying criminal case. Claimant moves to compel defendant to respond to his June 6, 2005 "Notice of Discovery & Inspection Demand." Defendant cross-moves to dismiss. Defendant argues that the claim should be dismissed for lack of jurisdiction to the extent that Mr. Marshall alleges he "was deprived of his Constitutional [right] of access to the courts." See Claim, ¶5.

In Brown v State of New York, Ct Cl, August 22, 2002 (unreported, claim no. 105309, motion no. M-65191, UID #2002-028-045,[1] Sise, J.), claimant alleged that when he was transported to another correctional facility for a court date, he was not provided with his "court bag" until two days after his scheduled court appearance despite repeated requests, and he thus alleged a denial of access to the courts. Judge Sise ruled that a cause of action for denial of access to the courts is premised on a violation of the Federal Constitution, and such must be pursued in an action under 42 USC §1983, over which the Court of Claims has no jurisdiction. However, Judge Sise also suggested that to the extent the claim contained other causes of action, including one for negligence, such might be actionable in this court if claimant could show he suffered damages therefrom.[2] In this case, claimant specifically alleges that because of defendant's alleged negligence[3], he missed the deadline for applying for permission to appeal the denial of his CPL §440.10 motion.

Defendant also argues that the to the extent the claim is one for bailment, it should be dismissed on the ground that claimant has failed to exhaust his administrative remedies. See §10.9 of the Court of Claims Act. However, the claim here is not for the injury to or loss of claimant's legal mail, but rather the failure to deliver it as requested.

As to claimant's discovery motion, defendant responds that a response has been provided to claimant under separate cover, however, defendant fails to provide a copy of such response, and claimant maintains that he has not received it. Without the opportunity to review such response, it is not possible for the Court to make a determination on motion no. M-70562.

In view of the foregoing, having reviewed the submissions,[4] IT IS ORDERED that cross-motion no. CM-70695 be denied, and decision on motion no. M-70562 be reserved. IT IS FURTHER ORDERED that within thirty (30) days of the filing of this Decision and Order, defendant shall provide to the court and claimant a copy of its response to claimant's June 6, 2005 discovery demand.

February 15, 2006
New York, New York

Judge of the Court of Claims

  1. [1]This and other decisions of the Court of Claims may be found on the Court's website,
  2. [2]In Brown, it was found that claimant did not show he had suffered any damages.
  3. [3]It should be noted that pursuant to 7 NYCRR §721.1, et seq., there are special procedures for the handling of outgoing legal mail that defendant is required to follow.
  4. [4]The Court reviewed: claimant's notice of motion with affidavit in support and exhibits A and B; defendant's affirmation in opposition; claimant's reply affidavit with exhibit A; and defendant's notice of cross-motion with affirmation in support and exhibits A through C