New York State Court of Claims

New York State Court of Claims

VERDEL v. THE STATE OF NEW YORK, #2006-028-504, Claim No. NONE, Motion No. M-70055


Synopsis


A notice of intention cannot extend the time for commencing property loss claims brought by State prison inmates, nor can the Court grant permission to late file such a claim pursuant to section 10(6) of the Court of Claims Act.



Case Information

UID:
2006-028-504
Claimant(s):
MICHAEL VERDEL
Claimant short name:
VERDEL
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-70055
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
MICHAEL VERDEL, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Paul F. Cagino, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 10, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Movant's motion, which is construed as a motion for permission to file an untimely claim:

1. Notice of Motion (captioned "Motion of Claim") and Supporting Affidavit of Michael Verdel, pro se, with annexed Exhibits


2. Affidavit in Opposition of Janet A. Barringer, Office of the New York State Attorney General


3. Reply letter of Michael Verdel, pro se


Filed papers: None

Although the document submitted by Movant bears the equivocal caption "Motion of Claim," it appears that what he is seeking to commence is a bailment action based on allegations that certain of his personal property was lost on April 23, 2004 when he was transferred from Coxsackie Correctional Facility to Eastern Correctional Facility. On July 13, 2004, after discovering the loss, Movant filed an institutional claim. This claim was disapproved initially but, on administrative appeal, it was approved with respect to one item only, a four year old watch, in the amount of $3.00 (Verdel Affidavit, Exhibit E). The appellate decision was issued on September 24, 2004, and the form on which it is contained states that any claim the inmate wishes to file in the Court of Claims "must be filed and served within 120 days of the date of this final determination" (see Court of Claims Act Section 10[9]).

According to Movant, he then "filed an (sic) notice of intent with the Attorney General, Mr. Elliot (sic) Spitzer on December 27, 2004 via certified mail return receipts attached" (Verdel Affidavit p 6 and Exhibits K, M).[1] The document that was accepted by this Court as notice of motion to late file was received by the Court on April 22, 2005.

According to Janet A. Barringer, a Senior Clerk with the Albany Office of the Attorney General, she conducted a search of the records of that office but found "no record that the Motion to Late File in this matter was ever served on the Attorney General" (Barringer Affidavit, Paragraph 4). Unfortunately, Ms Barringer did not list what, if any documents, the Attorney General had received from this Movant, so it is impossible for the Court to determine if a copy of the "Motion of Claim" had been served on the Attorney General and, perhaps, accepted as a claim rather than as a notice of motion.[2]

Whether Movant intended the document that was filed with the Court on April 22, 2005 to be a claim or notice of motion for permission to file an untimely claim, his effort is unfortunately futile. As noted above, pursuant to section 10(9) of the Court of Claims Act, any bailment claim commenced by an inmate of the State prison system must be filed within 120 days after the date on which his or her institutional remedies are exhausted. Consequently, any claim based on the April 2004 loss of Movant's property had to be commenced on or before January 22, 2005.[3]

Movant's notice of intention was served on the Attorney General within that 120-day time period, but section 10(9) contains no reference to a notice of intention and it has been held that this device may not be used to enlarge the time period for commencing a claim that is governed by that section (Blanche v State of New York, 3 Misc 3d 830 [Ct Cl 2004], rev'd on other grounds 17 AD3d 1069 [4th Dept 2005]; McCann v State of New York, 194 Misc 2d 340 [Ct Cl 2002]). Furthermore, it has been held that the relief afforded in section 10(6) of the Court of Claims Act, which gives the Court discretion to permit untimely claims to be filed, is not available in connection with these prisoner property loss claims (Roberts v State of New York, 11 AD3d 1000 [4th Dept 2004]). Having failed to commence his property loss claim within the 120-day period following exhaustion of his institutional remedies, Movant is foreclosed from bringing an action in this Court.

Movant's motion, having been construed as a motion for permission to late file, is denied.



January 10, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The document served on the Attorney General is captioned "Notice of Intention to File a Claim."
[2] According to Movant's reply letter, he had not, in fact, intended to move for permission to late file but, rather, apparently meant for the document captioned the "Motion of Claim" to serve as his claim.
[3] This presumes that Movant received notification of the decision on appeal on the day it was issued, September 24, 2004. The Fourth Department has recently held that the 120-day period referenced in Court of Claims Act § 10(9) is to be counted from the date that the inmate receives notification that his administrative remedies have been exhausted if that is different from the date on which it was issued (Blanche v State of New York, 17 AD3d 1069 [4th Dept 2005]).