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
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
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
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 ).
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 ).
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
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
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 ; People v Catu, 4 NY3d 242 ;
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 ; People v Baker, 301 AD2d 868 [3d Dept
2003], lv dismissed 99 NY2d 625 ).
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 ).
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
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 ). 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 ).
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.