New York State Court of Claims

New York State Court of Claims

TELESCO v. THE STATE OF NEW YORK, #2006-028-572, Claim No. 111287, Motion No. M-71423


Inordinate delay by prison officials in processing inmate’s request that the Court’s filing fee be paid from his inmate account provides an excusable reason for default and supports motion to vacate and restore. However, the Claim would be untimely and subject to immediate dismissal, so motion to restore is denied.

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):

Claimant’s attorney:
Defendant’s attorney:
BY: Thomas G. Ramsay, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 27, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Claimant’s motion for an order restoring Claim No. 111287:

1. Notice of Motion and Supporting Affidavit of Leonard Telesco, pro se, with annexed Exhibits;

2. Affirmation in Opposition of Thomas G. Ramsay, AAG, with annexed Exhibit.

Filed papers: Claim; Answer

By an Order filed September 15, 2005, this Court determined that Claimant had sufficient resources to pay the statutory filing fee of $50.00 and directed that such payment be made within 120 days of the date of that Order (i.e., by January 13, 2006). The Order further directed that if payment was not made, the Claim was to be dismissed without further judicial action. On January 26, 2006, Chief Clerk Robert T. DeCataldo directed that the claim be closed because the filing fee had not been paid.

Shortly thereafter, on February 3, 2006, Claimant’s filing fee was received by the Court. In an accompanying letter, Claimant informed the Chief Clerk that he had attempted on two separate occasions to have the $50.00 fee sent to the Court. Attached to his letter was a copy of a completed Disbursement or Refund Request, dated November 20, 2005, by which Claimant requested prison officials to send $50.00 from his inmate account to the Court of Claims. From notations written on its surface, it appears that the form was received by the Inmate Accounts office on November 21, 2005, and someone wrote a note saying that the request had to first be processed through Inmate Records. The form also contains another handwritten notation, dated January 20, 2006, stating “If you have court filing paperwork, please include to process.” From this the Court concludes that Claimant attempted to send his filing fee in a timely manner, that there was some problem with the submission (either the office to which it was sent or the documents accompanying it), and that Claimant was not told about the problem until after the 120-day period had elapsed. Certainly if the fee had been paid shortly after Claimant’s November 20 Request for Disbursement was submitted, it would have been received by the Court well within that time period.

Court of Claims Act § 19 (3) provides that “[c]laims may . . . be restored to the calender for good cause shown, in the discretion of the court,” and the Uniform Rules for the Court of Claims provide that an action which has been dismissed “shall not be vacated except upon stipulation of all parties so ordered by the court or by motion on notice to all other parties, supported by affidavit showing sufficient reason why the order should be vacated and the claim restored” (22 NYCRR 206.15). Neither Court of Claims Act § 19 nor Rule 206.15 is inconsistent with the provisions of CPLR 5015 and consequently, through operation of Court of Claims Act § 9 (9), the CPLR provision also governs motions to vacate prior orders or judgments of this court (see e.g. Welch v State of New York, 261 AD2d 537 [2d Dept 1999]; Amodeo v State of New York, 257 AD2d 748 [3d Dept 1999]).

Pursuant to that statute, a party may be relieved of a prior judgment or order on the ground of “excusable default” only if a motion for this relief is made within one year after the party was served with the order or judgment (CPLR 5015 [a] [1]), although courts have held that, in certain circumstances, they have an inherent power to vacate a judgment “in the interest of justice” even after the one-year period has expired (see e.g. Molesky v Molesky, 255 AD2d 821 [3d Dept 1998]). In either case, the moving party must establish that they have a reasonable excuse for the default and a meritorious cause of action (id. Cippitelli v Town of Niskayuna, 277 AD2d 540, 541 [3d Dept 2000]; Blumberg v State of New York, 208 AD2d 581 [2d Dept 1994]). In addition, courts are to inquire into the reasons for any delay in moving to vacate the default (City of Albany Indus. Dev. Agency v Garg, 250 AD2d 991 [3d Dept 1998]).

Claimant has instituted this motion within the one year period, and the Court is satisfied that he has presented a reasonable excuse for the default. Apparently recognizing that Claimant himself was not responsible for the default, Defendant opposes this motion primarily on the ground that the underlying claim is not viable, arguing that if it were restored, it would simply be dismissed as untimely. There is merit to this argument.

The lost property for which Claimant seeks compensation was packed up at Orleans Correctional Facility on December 23, 2004. After Claimant’s transfer to Collins Correctional Facility, he discovered that some of the items were missing and filed an institutional property claim on or about February 23, 2005. That claim was disapproved on April 11, 2005. Thereafter, Claimant was transferred to Oneida Correctional Facility and after his release from Special Housing Unit on April 6, 2005, he discovered that a few more items of property were missing. Apparently no institutional claim was filed in connection to this second loss. In the Claim, Claimant states that his claim accrued “between December 23, 2004 [and] April 6, 2005"; that he served a Notice of Intention on the Attorney General on June 15, 2005 “which was within 90 days of accrual;” and that the Claim is being served and filed within 120 days of the exhaustion of his administrative remedies (Claim, ¶¶ 5, 6, 7).

A certified copy of the Inmate Claim and Investigation file relating to the February 23, 2005 institutional property claim has been submitted by Defendant (Ramsay affirmation, Exhibit A). The inmate claim form shows that the claim was disapproved on April 11, 2005, with the following explanation: “bag received and issued . . . per investigation late bag from Orleans was issued 2/2/05.” Although Claimant’s papers contain no reference to his having belatedly received the missing property, no appeal was taken from that disapproval. With respect to the loss that allegedly occurred during his April 2005 transfer from Collins to Oneida, there is no record of any related claim in the certified documents provided by Defendant, and Claimant does not indicate that he ever filed such an institutional claim. The claim seeking compensation for items lost both in December 2004 and in April 2005 was filed with this Court on August 24, 2005.

Pursuant to Court of Claims Act § 10(9), claims alleging property loss or injury to property caused by the State must be filed and served within 120 days from the date on which the inmate’s institutional remedies are exhausted. The Department of Correctional Services has established a two-tier system for handling personal property claims, consisting of an initial review and an appeal (7 NYCRR 1700.3), and exhaustion of these remedies occurs when the appeal is denied (Diaz v State of New York, Claim No. 111503, Motion No. M-70947 [Ct Cl Dec. 12, 2005], Lebous, J., UID #2005-019-589). The fact that Claimant served a notice of intention on Defendant can have no effect on the timeliness of his claim, because section 10(9) contains no reference to a notice of intention. Consequently, it has been held consistently that the device may not be used to enlarge the time period for commencing a claim 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]).

Thus Claim No. 111287 incorporates several threshold jurisdictional defects which, as defense counsel argues, would inevitably require that, if the action were to be restored due to the excusable default, it would only be dismissed again, most likely on motion by the State. These defects cannot be overcome: Claimant failed to exhaust his administrative remedies with respect to the December 2004 loss, and he failed to pursue administrative remedies with respect to the April 2005 property loss. Furthermore, even if the April 11, 2005 disapproval of his first institutional claim could somehow be considered a final determination, the Claim was not filed or served until August 24, 2005, more than 120 days after the disapproval.

Because Claim No. 111287 is not and cannot be a viable claim, its restoration would be a futile act which would, in the end, simply cause Claimant to lose his $50.00 filing fee to no purpose. Consequently, Claimant’s motion is DENIED.

July 27, 2006
Albany, New York

Judge of the Court of Claims