New York State Court of Claims

New York State Court of Claims

GREEN v. THE STATE OF NEW YORK, #2007-015-260, Claim No. 113634, Motion No. M-74039


Synopsis


Motion to supplement claim to add bailment cause of action was denied when time to bring such a claim had expired when motion was decided.

Case Information

UID:
2007-015-260
Claimant(s):
SHAWN GREEN
Claimant short name:
GREEN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113634
Motion number(s):
M-74039
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Shawn Green, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 14, 2007
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate proceeding pro se, moves to supplement his claim to add a cause of action sounding in bailment, which is unrelated to the causes of action asserted in the original claim. The claim filed on April 27, 2007 alleges the use of excessive force by various correction officers at Great Meadow Correctional Facility on March 25, 2007, that the issuance of a misbehavior report was arbitrary and capricious and an abuse of process, that the hearing officer conducting the disciplinary hearing was biased and the disciplinary charges unsubstantiated, that the disciplinary sanctions imposed were for the purpose of retaliation or revenge and that the defendant failed to provide medical attention for "arches and pain" following the March 25, 2007 incident. On May 24, 2007 claimant filed a supplemental claim purporting to set forth causes of action based upon the transfer of the claimant to another facility on May 10, 2007 without allowing him the four bags of personal property an inmate is permitted and for "breach of contract with its intentional interference."

Claimant now seeks leave to file a second supplemental claim alleging the following:
2 (A). Upon inventorying personal property at Southport Correctional Facility in May 2007 claimant discoveried [sic] numerous items missing, lost or stolen that were set forth in facility claims. see, Inmate claim # 630-0066/07, 630-0091/07. Property was last in Great Meadow staff control.

3. The facility claims were administratively exhausted with decisions rendered June 21, 2007 and July 10, 2007.
Section 206.7(b) of the Uniform Rules for the Court of Claims (22 NYCRR § 206.7 [b]) permits a pleading to be amended in the manner provided by CPLR 3025. CPLR 3025 (b) provides that "[a] party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just . . ." Leave to amend a pleading shall be freely given unless the proposed amendment plainly lacks merit or would cause the nonmoving party to suffer prejudice or unfair surprise (McCaskey, Davies and Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983]; Bastian v State of New York, 8 AD3d 764, 765 [2004]). Here, the proposed supplemental claim sets forth a new claim unrelated to the causes of action asserted in the original claim and the time limitation set forth in Court of Claims Act § 10 (9) for the filing of a claim to recover damages for injury to or loss of property has expired. In this regard, Court of Claims Act § 10 (9) states:
"A claim of any inmate in the custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy (emphasis added)."
It is well settled that "the requirements of the Court of Claims Act as to the filing of claims must be strictly construed because the question of timeliness of filing is jurisdictional" (Pristell v State of New York, 40 AD3d 1198, 1198 [2007] [citation omitted]). The claimant filed administrative claim forms with regard to the alleged loss of personal property underlying the proposed supplemental claim on May 21, 2007 and May 31, 2007 and his administrative remedies were exhausted on June 21, 2007 and July 10, 2007 when the facility superintendent rendered decisions on claimant's appeals (see 7 NYCRR 1700.3). To be timely a claim would necessarily have had to have been filed and served within 120 days after the date the appeal decisions were rendered pursuant to Court of Claims Act § 10 (9) set forth above. Those dates expired on October 19, 2007 and November 7, 2007, respectively, and no claim was filed and served within these time periods.
Although the time limitation set forth in Court of Claims Act § 10 (9) had not expired when the claimant's motion to supplement his claim was filed and served, the filing of a motion does not serve to toll the statutory period for the commencement of an action. As the claimant failed to timely commence the bailment action by the filing and service of a claim as required by Court of Claims Act §11(a) (i) and § 10 (9), leave to supplement the existing claim to add the unrelated bailment claim would impermissibly circumvent the literal requirements of the Court of Claims Act regarding the timely commencement of an inmate property action. Accordingly, claimant's motion for leave to amend the claim to add a bailment cause of action is denied.

The Court lacks discretionary late claim authority under Court of Claims Act § 10 (6) as to claims brought pursuant to Court of Claims Act § 10 (9) (Blanche v State of New York, 17 AD3d 1069 [2005]; Roberts v State of New York, 11 AD3d 1000 [2004]).

Based on the foregoing, the claimant's motion is denied.



December 14, 2007
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated September 25, 2007;
  2. "Affirmation" of Shawn Green sworn to September 25, 2007 with exhibits;
  3. Memorandum of law of Shawn Green dated September 25, 2007;
  4. Affirmation in opposition of Michael T. Krenrich dated October 10, 2007;
  5. Reply of Shawn Green sworn to October 16, 2007.