New York State Court of Claims

New York State Court of Claims

BELOT v. THE STATE OF NEW YORK, #2007-028-577, Claim No. NONE, Motion No. M-73004


Inmate’s motion for permission to file a late claim alleging property loss is denied, and submission of a “draft claim” in connection with his motion did not constitute a formal filing of a Claim.

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: Paul F. Cagino, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 10, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Movant’s motion for permission to file an untimely claim:[1]

1. Notice of Motion and Supporting Affidavit of Jean Belot, Jr., pro se, with annexed Exhibits;

2. Affirmation in Opposition of Paul F. Cagino, AAG.

3. Reply Affidavit (incorrectly captioned “Affirmation”) of Jean Belot, Jr.

Filed papers: None

This is a bailment claim, which arose between May 30 and June 1, 2006, when Movant was transferred between two correctional facilities operated by the Department of Correctional Services (DOCS). Following the alleged loss, Movant filed an institutional claim, which was finally denied in October 2006.[2]

Pursuant to section 10(9) of the Court of Claims Act, an action for property loss by an inmate of the State prison system must be commenced within 120 days after the date on which the inmate’s institutional claim was finally adjudicated. Because that provision of the Court of Claims Act does not reference motions for permission to late file, and because section 10(6) of the Act which establishes such a motion as a remedy for missing only the “foregoing” time limitations (i.e., those established by section 10[1] through 10[5]), it has been held that late claim relief is not available in connection with inmate property loss claims (Roberts v State of New York, 11 AD3d 1000 [4th Dept 2004]). Consequently, the relief sought by Movant cannot be granted.

It is acknowledged, however, that this motion was commenced within 120 days of the date on which Movant alleges he was notified that his institutional claim was finally denied, November 6, 2006 (see Blanche v State of New York, 17 AD3d 1069 [4th Dept 2005] [the 120-day period of Court of Claims Act § 10(9) runs from the date the inmate receives notification that his final administrative appeal had been denied]).
In his Notice of Motion, Movant states that he is seeking an extension of time to file a claim “or for permission to late-file an amended version of the attached draft claim.” The moving papers consist of the Notice of Motion, Movant’s affidavit, a verification, a list of the package contents, an affirmation of service by certified mail, papers to support a CPLR 1101(f) application for a waiver of the Court’s filing fee, and a document captioned “Claim.” Section 10(6) of the Court of Claims Act requires that in connection with a motion for permission to late file, “[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application.”

When the motion papers arrived at the Court, the Clerk’s Office obviously, and logically, considered the document captioned “Claim” to be the “claim proposed to be filed.” Because no claim would be filed unless and until the motion was granted, the 1101(f) application was simply retained in the Motion Unit, as is the usual practice when, as frequently happens, a pro se litigant submits such an application with a late claim motion, rather than waiting to submit it with the actual claim.

In response to Defendant’s submission, which cited to Roberts (supra) for the proposition that late claim relief is not available with respect to this type of claim, Movant submitted a Reply Affidavit in which he asserts (¶ 2) that he had not simply moved for an extension of time to file his claim but had also, at the same time, filed a claim. “[C]laimant’s filing of his claim and motion, simultaneously, has been partially misconstrued as only a motion and not also the filing of the claim, itself.” He further explains that he simultaneously filed a “minimally acceptable claim” to preserve his rights, in the event that he did not get permission to late-file one that contained additional documentation (¶ 7).

There is nothing wrong with a litigant filing a claim and, simultaneously, commencing a motion for permission to late-file the same claim. This is done, not frequently but on occasion, when there is some concern about whether the time period for filing has expired and/or, as Movant asserts here, where the litigant has some question about the adequacy of the Claim that is being filed. In order to accomplish this, however, it is necessary to inform the Court in some meaningful fashion that that is what is being done.

There is simply nothing in Movant’s original submissions to alert the Clerk’s Office that the document captioned “Claim” was anything other than the proposed claim that must accompany a section 10(6) motion to late-file. Requiring the Clerk of the Court to guess at a movant’s intention in these situations would cause considerable confusion and situations that would require much time and effort to untangle. If the Clerk had decided to accept the document captioned “Claim” as a claim being filed separate from the motion, the motion papers would be insufficient on their face, so that relief would be denied. In addition, Defendant might not have given that interpretation to the documents, and thus the State could wind up in default with no warning or reason to be concerned. It is by far the better practice for the Clerk’s Office to designate filings as they most clearly and logically appear to be when they are filed. In the instant case, Movant’s principal submission was entitled “Notice of Motion for Time Extension or Permission to File Claim Late” and contained a reference to the “attached draft claim.” In addition, there was no statement in the affidavit that accompanied the Notice of Motion to suggest that anything was being attempted other than a normal filing of a late claim motion, accompanied by the proposed claim. If Movant intended something else, he should have informed the Court.

For the reasons set forth above, Movant’s motion is denied.

October 10, 2007
Albany, New York

Judge of the Court of Claims

[1]. Movant’s Notice of Motion indicates that it is for “time extension or permission to file claim late.” The Court lacks authority to extend the time limitations contained in section 10 of the Court of Claims Act except by means of a successful application for permission to file a late claim (Court of Claims Act §10[6]).
[2]. In paragraph 5 of his affidavit in support of the motion, Movant states that his institutional claim was denied “10-23-07" but this is obviously an error. The claim that accompanied his motion papers (¶ 12) states that the final decision denying his institutional claim occurred on “10-23-06,” his reply affidavit states (¶ 3), that the October 23 date was incorrect: the final determination on appeal occurred on October 31, 2006 and he was notified of that fact on November 6, 2006.