New York State Court of Claims

New York State Court of Claims

Cruz v. STATE OF NEW YORK, #2008-018-642, Claim No. NONE, Motion Nos. M-75229, M-75274


Movant filed an application to file a late claim which is DENIED. It is Movant’s burden to show that the proposed claim has the appearance of merit, and Movant has failed to establish such merit. There is plainly insufficient information presented for a meaningful review

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):
M-75229, M-75274
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 2, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Movant has brought two motions both returnable on the same date . The first motion

(M-75229) is a motion seeking permission to file a late notice of intention to file a claim. This motion lacked a notice of motion and failed to include a proposed claim. As there is no such relief authorized by the Court of Claims Act, this motion is DENIED.

Thereafter, Movant filed a motion (M-75274) for permission to file a late claim pursuant to Court of Claims Act § 10(6). Defendant filed opposing papers to Motion No. M-75229. Since the arguments made therein are applicable to this motion, Motion No. M-75274, the Court has considered Defendant’s papers in opposition to this motion.

Court of Claims Act § 10(6) allows a claimant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act § 10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act § 10[6]). The application appears timely (CPLR 215).

The proposed claim alleges that the State, through the Department of Correctional Services (hereinafter DOCS), wrongly detained Movant against his will by illegally altering his determinate sentence of five years imprisonment for his conviction of robbery in the first degree. Movant alleges that on July 18, 2002, the Supreme Court in Kings County sentenced him to five years imprisonment without including any post release supervision. On December 2, 2005, DOCS conditionally released Movant from prison and imposed five years post release supervision. Movant’s discharge was revoked after a final revocation hearing on March 22, 2007, at Cayuga County Jail by an administrative law judge, finding Movant was delinquent as of January 27, 2007, and imposed 18 months of delinquent time. Movant was returned to the custody of DOCS on March 28, 2007. On March 13, 2008, Movant was again released from DOCS custody after a Writ of Habeas Corpus was granted by the Supreme Court, Hamilton County, dismissing the violation warrant upon which Movant was arrested, violating his post release supervision.

Movant asserts that DOCS was without authority when it imposed five years post release supervision when no such post release supervision was made part of the original sentence imposed by the Court. Movant alleges that DOCS was required to contact the county district attorney to seek a modification of his sentence to include post release supervision or to assess other options, but DOCS could not, on its own initiative, modify his sentence. As a result of the improper imposition of post release supervision, Movant was allegedly wrongfully detained by DOCS.

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act § 10(6) and any other relevant factors. The presence or absence of any one factor is not determinative (Bay Terrace Cooperative Section IV, Inc., v New York State Employees’ Retirement System, Policemen’s and Firemen’s Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.

The first factor, is whether the delay in filing the claim is excusable. Movant asserts that as an inmate he has no access to professional legal help, he is not an attorney and could not get to the law library during the statutory period. He also asserts that the facility did not answer his numerous requests for notary public services. These are not valid excuses (Sandlin v State of New York, 294 AD2d 723; Galvin v State of New York, 176 AD2d 1185; LaBar Truck Rental v State of New York, 52 AD2d 1007). This factor must weigh against granting Movant’s application.

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Movant does not address these factors. Based solely upon Movant’s assertions, it seems he filed a petition for Writ of Habeas Corpus presumably on the ground that he was being illegally imprisoned because DOCS did not have authority to impose post release supervision. The Writ was granted and according to Movant, there was a dismissal of the warrant and he was released from the custody of DOCS. The granting of a petition for Writ of Habeas Corpus should have been some notice to DOCS of Movant’s allegations and the facts underlying this claim. Defendant makes no allegation that it lacked notice or will suffer prejudice. Accordingly, these factors weigh in favor of granting the application.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. Generally a proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11).

The basis for Movant’s proposed claim is DOCS’ alleged imposition of post release supervision which resulted in his alleged wrongful detention. Defendant argues that the imposition of post release supervision is mandated by statute and a required component of Movant’s sentence of imprisonment for a determinate time period. Defendant maintains that although it is the sentencing courts’s obligation to advise the criminal defendant of this post release supervision, the failure to do so does not give rise to a cause of action in this Court, but instead requires that such a procedural error be remitted to the sentencing judge for a re-sentencing hearing so that the original sentence can be vacated and the criminal defendant advised of the post release supervision period.

It is Movant’s burden on a late claim application to show that his proposed claim has the appearance of merit, and here, Movant has failed to establish such merit. There is plainly insufficient information presented for a meaningful review of this factor; Movant has failed to provide any supporting documents, including copies of the minutes from the sentencing hearing, any commitment or computation sheets or any commitment orders, decision and order of the administrative judge, the petition for the Writ of Habeas Corpus or of the Writ, etc. Movant does note that the computation sheet, at the time of his incarceration for this crime, reflected his sentence and post release supervision, and it may be that Movant’s sole remedy, as set forth in People v Sparber, 10 NY3d 457, and the newly enacted Correction Law § 601-d (Laws of 2008, Ch 141) is remittal to the sentencing judge for resentencing. Based upon the lack of supportive information, this factor does not weigh in favor of Movant’s application.

The final factor is whether the proposed Movant has any other remedy available. Movant admits to having been granted a Writ of Habeas Corpus. It is not clear from the facts presented whether Movant would have any other remedy.

Accordingly, based upon the foregoing Movant’s application is DENIED without prejudice.

January 2, 2009
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:


1. Notice of Motion to File Late Notice of Intention to File a Claim, sworn to by Eddie Cruz, June 16, 2008.


2. Motion for Permission to File Late Claim by Eddie Cruz, Pro Se, sworn to on July 3, 2008, with exhibits attached thereto.

3. Affirmation of Michael T. Krenrich, Esquire, Assistant Attorney General, in opposition.