New York State Court of Claims

New York State Court of Claims

ALLEN v. THE STATE OF NEW YORK, #2008-015-071, Claim No. None, Motion No. M-75105


Application for late claim relief was denied.

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:
Jimmie Lee Allen, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Thomas R. Monjeau, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 22, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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, ¶ Eighth).[1] 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, ¶ Tenth).[2]

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 [3]; Matter of Rausman, 50 AD3d 909 [2008]; Tatko v Sheldon Slate Prods. Co., 2 AD3d 1030 [2003]). 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 [1994]). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). 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 [1993]).

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 [2007]; Prusack v State of New York, 117 AD2d 729 [1986]). 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 motion.

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 [2008]; cf., Matter of Donaldson v State of New York, 167 AD2d 805 [1990]). 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 claim.

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 [1977]). 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 [2007]; Witko v State of New York, 212 AD2d 889 [1995]. 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 [2005]). 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.

September 22, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated May 30, 2008;
  2. Affidavit of Jimmie Lee Allen sworn to May 27, 2008 with attachment;
  3. Affirmation of Thomas R. Monjeau dated June 26, 2008 with exhibit.

[1]. It is not known how movant arrived at the amount he determined was adequate for the refund.
[2].It is not clear what the additional request for $18.65 represents.