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
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
In this case, claimant
specifically alleges that because of defendant's alleged
, he missed the deadline for
applying for permission to appeal the denial of his CPL §440.10
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
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.