New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2006-044-519, Claim No. None, Motion No. M-72286


Synopsis


Claimant’s unnecessary motion for permission to file a claim is dismissed as moot. The Clerk is directed to file, as a claim, the proposed claim attached as an exhibit to the motion papers.

Case Information

UID:
2006-044-519
Claimant(s):
RONALD JOHNSON
Claimant short name:
JOHNSON
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-72286
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
RONALD JOHNSON, pro se
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 12, 2006
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for permission to file a claim to recover for lost property. Defendant State of New York (“defendant”) opposes the motion.

Claimant alleges that when he was transferred from his cell in G-Block at Elmira Correctional Facility (“Elmira”) to the Special Housing Unit (“SHU”), certain items of his personal property were lost by defendant’s employees. Claimant’s inmate claim was denied on May 30, 2006 and his appeal was denied on June 6, 2006, thus exhausting his administrative remedies. Claimant correctly states that the law permits him to bring his claim within 120 days after exhaustion his administrative remedies. Claimant was therefore required to file and serve a claim on or before October 4, 2006 (Court of Claims Act § 10 [9]).[1]

Rather than filing a claim, however, claimant filed this motion seeking unnecessary permission to file a claim. In his motion, claimant proceeds to address the statutory factors contained in Court of Claims Act § 10 (6) for permission to file a late claim. Defendant argues in opposition that application of the factors set forth in Court of Claims Act § 10 (6) to this case does not support granting claimant's request to file a late claim. Notwithstanding the arguments of both parties, an application to file and serve a late claim under Court of Claims Act § 10 (6) is not available to inmates seeking to recover for lost property in claims not timely commenced pursuant to Court of Claims Act § 10 (9) (see Roberts v State of New York, 11 AD3d 1000 [2004]).

Claimant's motion was filed on September 15, 2006 and served on the Attorney General by certified mail, return receipt requested, on September 18, 2006. The motion was returnable October 11, 2006 and a claim filed at that time would have been late. However, a proposed claim containing the information mandated by Court of Claims Act § 11 (b) is annexed as an exhibit to the motion papers. The Court hereby deems the proposed claim attached as an exhibit to claimant’s “Notice of Motion to File a Claim” to be a claim filed on September 15, 2006 and served on the Attorney General as of September 18, 2006, both in a timely manner.[2] Defendant shall file and serve an answer within 40 days from the filing date of this decision and order (see Uniform Rules for the Court of Claims [22 NYCRR] § 206.7 [a]).

The Clerk is directed to file as a claim the claim attached as an exhibit to claimant’s “Notice of Motion to file a Claim” as of September 15, 2006. Claimant’s Motion No. M-72286 is denied as moot.[3]

December 12, 2006
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion for leave to file a claim:

(1) Notice of Motion filed September 15, 2006; Affidavit of Ronald Johnson sworn to August 3, 2006 with annexed exhibits; Claimant’s Amendment to Notice of Motion filed September 15, 2006; Affidavit of Ronald Johnson sworn to September 12, 2006 with annexed exhibits.

(2) Affirmation in Opposition of Joseph F. Romani, AAG dated September 21, 2006.

(3) Claimant’s Response to Mr. Romani’s Affirmation in Opposition sworn to October 5, 2006.




[1]. This presumes that claimant received notification of the decision on appeal on the day it was issued. The 120-day period set forth in Court of Claims Act § 10 (9) commences on the date that the claimant receives notification of the decision, if that date is different from the date on which the decision was issued (Blanche v State of New York, 17 AD3d 1069 [2005]).
[2]. Claimant also filed an “Amendment to Notice of Motion to File a Claim” on the same date, but there is no indication that such “Amendment” was served by certified mail, return receipt requested. Therefore, the proposed claim included in the “Amendment” will not be considered either filed or served.
[3]. With his motion papers, claimant submitted an affidavit pursuant to CPLR 1101 (f), which is on file in the Clerk’s Office, thus satisfying the mandate of Court of Claims Act § 11-a (1).