New York State Court of Claims

New York State Court of Claims

JORDAN v. THE STATE OF NEW YORK, #2007-041-034, Claim No. None, Motion No. M-73633


Application to file late claim denied where proposed wrongful imprisonment claim lacks merit.

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:
New York State Attorney GeneralBy: Michael C. Rizzo, Esq., Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 14, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6). The application is denied.

Claimant is an inmate at Greene Correctional Facility. In support of his application, claimant alleges that as a result of defendant’s “intentional actions and or negligent operation, management, conduct, and supervision,” a five year period of post-release supervision was added to his sentence, allegedly resulting in personal injuries, loss of wages and unlawful imprisonment. Claimant alleges that his claim accrued between May 25, 2000 and February 12, 2002. This application was served on the Attorney General by certified mail, return receipt requested, on June 14, 2007 and filed on June 25, 2007.

Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim “at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules.”

By claimant’s own admission, more than five years have elapsed since the claim accrued. The claim is therefore time-barred whether defendant’s alleged wrongdoing is characterized as intentional or negligent (see CPLR §§ 214 and 215). Even assuming a later accrual date for which claimant’s application would be considered timely, the application would still be denied.

In determining the application, Court of Claims Act § 10 (6) provides that:
“[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.”

In reviewing a late claim application, “the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling” (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, “[n]othing in the statute makes the presence or absence of any one factor determinative” (Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).

Further, “it is well settled that the Court of Claims’ broad discretion in this area should be disturbed only in the face of clear abuse” (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).

Claimant has also failed to attach a copy of the proposed claim to his application, as required by the statute. The application may be denied on that ground alone (Davis v State of New York, 28 AD2d 609, 610 [3d Dept 1967]).

Claimant fails to offer a reasonable excuse for the delay in filing the claim. Claimant alleges that he only learned that the five year period of post-release supervision was wrongfully added to his sentence by defendant on or about August 24, 2006, yet he did not make this application until nearly ten months later, well after the ninety-day time period for filing and serving the claim expired (Court of Claims Act § 10).

Although defendant argues that it lacks a “description of the events surrounding [the claim] sufficient to make a determination as to whether or not there is in fact a meritorious claim,” it does not assert that it lacks “an opportunity to investigate the circumstances underlying the claim.” The defendant does not allege that it would suffer any prejudice were the late claim application to be granted.

Claimant has apparently exercised another available remedy by commencing a habeas corpus proceeding in Supreme Court.

Section 10 (6) requires that the proposed claim not be “patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists” (Rizzo v State of New York, 2 Misc 3d 829, 833-834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).

The proposed claim lacks merit. Claimant alleges that “a records coordinator had unlawfully, and without legal authority, administratively added a 5 year period of post-release supervision” to claimant’s sentence. Apparently, this was done pursuant to Penal Law § 70.45 which requires that every determinate sentence include an additional period of post release supervision of up to five years.

Claimant’s sentence arose from a guilty plea. If the sentencing court failed to advise claimant of the mandatory period of post release supervision required by Penal Law § 70.45 prior to his guilty plea, the claimant’s remedy is to seek to withdraw his plea (People v Van Deusen, 7 NY3d 744 [2006]; People v Catu, 4 NY3d 242 [2005]; People v Keyes, 300 AD2d 909 [3d Dept 2002]).

Neither this Court nor this defendant can vacate claimant’s guilty plea. The Court notes that claimant’s right to move to vacate his guilty plea based upon a failure of the sentencing court to advise him of the mandated post release supervision requirement of Penal Law § 70.45 is not extinguished by a failure to raise the issue by an appropriate post conviction motion (People v Louree, 8 NY3d 541 [2007]; People v Baker, 301 AD2d 868 [3d Dept 2003], lv dismissed 99 NY2d 625 [2003]).

Further, the Appellate Division, Third Department, in affirming the dismissal of an Article 78 petition to prohibit the New York State Department of Correctional Services(DOCS) from imposing a period of post release supervision upon a convicted felon, recently held that DOCS was “only enforcing, not imposing, a part of petitioner’s sentence which was automatically included by statute” (Matter of Garner v New York State Dept. of Correctional Servs., 39 AD3d 1019 [2007]).

To present a meritorious claim for damages, claimant must show that his imprisonment was wrongful by first obtaining a court order annulling or vacating the DOCS’ order or determination which imposed the post release supervision. This Court lacks jurisdiction to vacate the DOCS’ order requiring post release supervision.

Finally, despite the characterization of the proposed claim as one for personal injuries, loss of wages and unlawful imprisonment, the claimant essentially challenges the administrative policies of the Department of Correctional Services.

The Court of Claims is a court of limited jurisdiction and the powers conferred upon it do not include the authority to provide the type of equitable relief sought by claimant (Madura v State of New York, 12 AD3d 759, 760 [3d Dept 2004], lv denied 4 NY3d 704 [2005]). The jurisdiction of the Court of Claims is invoked where money damages are the essential object of the claim, unlike an instance where the principal claim is equitable in nature (such as a challenge to the administrative policies of a state agency), with monetary relief being incidental to the principal claim (see Harvard Fin. Servs. v State of New York, 266 AD2d 685, 685 [3d Dept 1999]; Matter of Gross v Perales, 72 NY2d 231, 236 [1988]).

Based upon a balancing of the factors set forth in section 10 (6) and recognizing that “it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion” (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]), the application to file a late claim is denied.

August 14, 2007
Albany, New York

Judge of the Court of Claims

Papers Considered:

  1. Notice of Motion, filed June 25, 2007;
  2. Affidavit of Terence G. Jordan, sworn June 14, 2007;
  3. Affidavit of Michael C. Rizzo, sworn June 29, 2007.