Movant, an inmate proceeding pro se, seeks late claim relief pursuant
to Court of Claims Act § 10 (6). Movant seeks damages for the alleged
fraudulent conduct of the State in overcharging him for the cost of shipping
eight draft bags of personal property upon his transfer from Great Meadow
Correctional Facility to Shawangunk Correctional Facility (CF) on December 4,
2007. He alleges in the proposed claim that he completed a form (2706), which
was required to send home one of these items of personal property, a
typewriter. However, on December 14, 2007 he discovered that the typewriter was
erroneously sent to Shawangunk CF (proposed claim, ¶ Fifth). Thereafter,
on December 17, 2007 he received a list from Shawangunk CF together with form
2706 reflecting the mailing of nine items of personal property and that $152.70
had been deducted from his inmate account (proposed claim, ¶ Seventh).
Although the proposed claim indicates that both the list and form 2706 were
attached to the proposed claim, in fact they were not.
Movant alleges that on December 31, 2007, January 9, 2008, February 1, 2008,
March 3, 2008, March 5, 2008, April 4, 2008, April 21, 2008, and May 19, 2008
he filed a grievance, an institutional claim and sent several communications in
an attempt to obtain a mail receipt, the weight of each of the items shipped,
and a refund of $142.70 (proposed claim, ¶
He also allegedly sent various
correspondence to the Governor, the Commissioner of the Department of
Correctional Services, the Inspector General, the Superintendents of both Great
Meadow CF and Shawangunk CF, the Inmate Grievance Supervisor at Shawangunk CF,
and the Deputy Superintendent of Administration at Shawangunk CF. None of
these communications were submitted in support of the motion nor were copies of
the grievance or institutional claim.
Movant alleges in the proposed claim that he was initially offered $19.89 to
settle the claim, which was increased to $38.54 (proposed claim, ¶ Tenth).
Movant also alleges that he rejected these offers because he was denied access
to the mail receipts and information regarding the weight of two unspecified
items and because his claim was for a total of $152.70 plus $18.65 "which was
obtained by way of fraudulent pretense" (proposed claim, ¶
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the following
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."
The first issue for determination upon a late claim motion is whether the
application is timely. Subdivision 6 of section 10 requires that a motion to
file a late claim be made "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." It appears the proposed claim asserts either
a cause of action for fraud or conversion for which the statutes of limitation
are six years and three years respectively (see CPLR 213; CPLR 214 ;
Matter of Rausman, 50 AD3d 909 ; Tatko v Sheldon Slate Prods.
Co., 2 AD3d 1030 ). Claimant's motion is therefore timely.
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965 ). The statutory factors are not exhaustive nor is any one
factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117
). The most important factor is whether the potential claim has merit, as
it would be a futile exercise to permit litigation of a clearly baseless lawsuit
(Savino v State of New York, 199 AD2d 254 ).
Movant asserts as excuses for his failure to timely file his claim that he
attempted to seek redress through first filing a grievance and an institutional
claim and that additional attempts were made to resolve the claim to no avail.
He faults the State for failing to promptly resolve the claim and delaying the
appeal process. It is well settled that the anticipation of settlement is not a
reasonable excuse for the failure to timely file a claim (Matter of Best v
State of New York, 42 AD3d 699 ; Prusack v State of New York,
117 AD2d 729 ). Inasmuch as utilization of the institutional claim
procedure was not a prerequisite to the filing of the instant claim, the Court
finds that the movant failed to proffer a reasonable excuse for the delay. The
lack of a reasonable excuse weighs against the movant in determining this
The intertwined issues of notice, opportunity to investigate and prejudice to
the State will be considered together. Although the movant asserts that he
filed a grievance and an institutional claim relating to this matter, none of
this paperwork was submitted in support of the motion nor did the movant specify
the dates the grievance and claim were filed. Without copies of the grievance,
institutional claim and various correspondence referenced by the movant the
Court is unable to determine whether the State received notice of the essential
facts constituting the claim to enable it to perform a timely investigation and
determine its liability under the circumstances (see generally Matter
of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138, 147-148
; cf., Matter of Donaldson v State of New York, 167 AD2d 805
). Movant’s failure to establish that the State had notice of the
essential facts constituting the claim, the concomitant opportunity to
investigate and lack of prejudice weighs against granting leave to file a late
With respect to the required showing of merit, the claim is sufficiently
established if the claimant demonstrates that the proposed claim is not
"patently groundless, frivolous, or legally defective" and there is reasonable
cause to believe that a valid cause of action exists (Matter of Santana v New
York State Thruway Auth., 92 Misc 2d 1,11 ). Although the claim may
not be patently groundless, the movant failed to set forth sufficient facts to
enable the Court to determine if there is reasonable cause to believe a valid
cause exists (Id.; Olsen v State of New York, 45 AD3d 824 ;
Witko v State of New York, 212 AD2d 889 . The basis for the
movant's contention that he was overcharged for the cost of shipping is not
apparent from the claim nor the affidavit submitted in support thereof.
Regarding the allegation of fraud, movant failed to show that a
misrepresentation was made with the intent to deceive or that he relied on those
statements to his detriment (Kaufman v State of New York, 18 AD3d 504
). As a result, the movant failed to establish that the proposed claim
has the appearance of merit.
As to the final factor to be considered, it does not appear that an adequate
alternative remedy exists.
Upon balancing all of the factors enumerated in Court of Claims Act § 10
(6), the Court finds that five of the six, including the all important issue of
merit, weigh against granting movant's application for permission to file a late
claim. Accordingly, movant’s application for such relief is denied.