New York State Court of Claims

New York State Court of Claims

VEGA v. THE STATE OF NEW YORK, #2008-030-503, Claim No. 114105, Motion No. M-74218


Claimant’s motion for permission to file a late notice of intention - served in reaction to defenses raised in answer to claimant’s claim asserting causes of action for bailment and intentional infliction of emotional distress - treated as a late claim motion and denied. Only application before court is claimant’s. Underlying claim remains whatever its jurisdictional or substantive infirmities, since defendant has not moved to dismiss the claim, and claimant has not moved to strike defenses.

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:
Third-party defendant’s attorney:

Signature date:
February 7, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for permission to

“file a late notice of intention to file a claim” brought pursuant to Court of Claims Act §10(6):

1,2 Notice of Motion; Affidavit in Support of Motion to File Late Claim by Jose Vega, claimant

  1. Affirmation by Dewey Lee, Assistant Attorney General
4,5 Filed Papers: Claim Number 114105; Answer

Jose Vega alleges in Claim number 114105 that defendant’s agents at Green Haven Correctional Facility intentionally confiscated his property as contraband on July 6, 2006 during a cell search and did not allow him to dispose of same in contravention of facility regulations. He also alleges that he was issued a misbehavior report in connection with the seizure, was found guilty of various disciplinary violations, and suffered a penalty of confinement and loss of privileges, but does not allege that he was wrongfully confined. Rather, he claims that he suffered mental anguish due to the property loss and the persistent denial of relief pursuant to his inmate personal property claims remedy. With regard to the property loss, he asserts he exhausted his administrative remedies, on or about November 8, 2006, and that he then served a Notice of Intention to File a Claim on December 19, 2006. According to the affidavit of service, the claim itself was served upon the Attorney General by certified mail, return receipt requested August 9, 2007. The claim was filed in the Office of the Chief Clerk of the Court of Claims on August 16, 2007.

In its Answer, the State raises several defenses, among them a failure to exhaust administrative remedies, expiration of the statute of limitations, lack of jurisdiction because the claim was untimely served and filed, and lack of jurisdiction because the notice of intention was sent by regular mail, and thus did not operate to extend the time within which to serve and file a claim.

Apparently in reaction to receipt of the answer, claimant has now brought this motion initially described on the notice of motion page as one for Permission to File a late Notice of Intention, but based on the affidavit and the reference to Court of Claims Act §10(6), clearly intended as one for permission to serve and file a late claim.

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available.

In his moving papers, claimant mentions the defenses raised in the Answer to Claim number 114105, noting that his failure to mail the notice of intention “by Registered mail” was inadvertent - thus acknowledging that the Notice of Intention was not served by the proper means - and recites that he is “physically handicapped and subject to unusual hardships” presumably as a reason why the document was not sent by the appropriate means. He asks that the court either allow him to proceed with the claim already filed and paid for, notice of which has clearly been received by the Defendant, or allow him to serve and “file a late notice of intention.” He addresses some of the factors listed in Court of Claims Act §10(6) which a court must consider when determining whether to grant permission to serve and file a late claim. He indicates that there would be no prejudice to the State given that notice has been received and that the claim was investigated at length within the facility, and that he has no other remedy at law. It is clear that the claimant intends that his already filed claim serve as a proposed claim required to be submitted with a late claim motion.[1]

In a two paragraph Affirmation filed in opposition, the defendant writes the following:
“Movant has apparently filed a claim under #114105. He now moves for an order to allow him to file a late notice of intention. No such procedural remedy exists and thus, the motion should be dismissed. Assuming this court allows this to be converted to a motion to file a late claim, he fails to raise a legally sufficient reasons to support his application and thus, the motion should be denied.”

Court of Claims Act §10(9) provides that an inmate’s claim for loss of personal property may not be filed until the administrative remedies provided by the applicable regulations have been exhausted. [See 7 NYCRR Part 1700]. Thereafter, “. . . [s]uch claim must be filed and served within one hundred twenty days after the date on which the inmate has exhausted such remedy.” Court of Claims Act §10(9). Late claim relief is not available under Court of Claims Act §10(6) for such claims. See Blanche v State of New York, 17 AD3d 1069 (4th Dept 2005); Roberts v State of New York, 11 AD3d 1000 (4th Dept 2004) see also Pristell v State of New York, 40 AD3d 1198 (3d Dept 2007).

The claim proposed herein attempts to present a mix of theories and causes of action, that nevertheless rest on a bailment created when agents of the New York State Department of Correctional Services seized claimant’s property for whatever reason, and then failed to return control of the property to the claimant either by alleged failure to return the actual property, or to dispose of it pursuant to the claimant’s directions. See generally Claflin v Meyer, 75 NY 260 (1878). The State has a duty to secure an inmate’s personal property. Pollard v State of New York, 173 AD2d 906 (3d Dept 1991). A delivery of property to the bailee, and the latter’s failure to return it, satisfies Claimant’s burden of establishing a prima facie case of negligence. The bailee is then required to come forward with evidence to “overcome the presumption.” Weinberg v D-M Rest. Corp., 60 AD2d 550 (1st Dept 1977). “Where a bailment is created, a showing that the . . . [property was] delivered to the bailee and returned in a damaged condition establishes a prima facie case of negligence and the burden shifts to the bailee to demonstrate that it exercised ordinary care . . . (citation omitted)” Board of Educ. of Ellenville Cent. School v Herb’s Dodge Sales & Serv., 79 AD2d 1049, 1050 (3d Dept 1981).

Here, claimant alleges that when his personal property - tobacco and stamps - was seized during a cell search on July 6, 2006, he sought and filled out the facility forms for sending the property home, but it did not arrive. Later in the claim it becomes apparent that he is also asserting that other property, including magazines, books and a clock, had been removed from the cell in the same search. He states that the “intentional and unwarranted theft of claimant’s lawful property became apparent when, on July 12, 2006, claimant was summoned to the Package Room and advised by C.O. Elafonte that claimant’s magazines, books and clock was removed to the Reception Room, because the Package Room scale was allegedly ‘too small’ to weigh the confiscated property . . .” [Claim Number 114105, ¶ 7].

Calling the actions by State agents “theft” does not make the cause of action other than what it is, namely one asserting that the State is liable under a theory of bailment. A claim asserting such a cause of action must be served and filed within 120 days of exhaustion of a claimant’s administrative remedy, timely and proper service of a notice of intention does not extend the time within which to serve and file a claim, nor is late claim relief available. Accordingly, in so far as claimant’s motion seeks permission to serve and file a late bailment claim it is denied.

The “proposed” claim also asserts some mental anguish or emotional injury associated with the various denials of administrative relief with regard to his personal property. A claim seeking recovery for negligent infliction of emotional distress without alleging a “. . . contemporaneous or consequential physical injury . . .” [See, Johnson v State of New York, 37 NY2d 378, 381 (1975)], must generally be premised upon a breach of duty owed directly to a claimant, which either endangered his physical safety or caused him to fear for his own physical safety. Thomas v Supermarkets Gen. Corp., 154 Misc 2d 828 (Nassau Co. Sup. Ct. 1992). Clearly, breach of an alleged bailment is not such a duty, thus there is no appearance of merit to the proposed claim.

Similarly, the State cannot be held liable for the intentional infliction of emotional harm. The State is an entity, incapable of forming the requisite intent. Furthermore, “. . . public policy prohibits a claim for intentional infliction of emotional distress from being brought against the State . . . (citation omitted),” De Lesline v State of New York, 91 AD2d 785, 786 (3d Dept 1982); and the State is not subject to punitive damages. Sharapata v Town of Islip, 56 NY2d 332, 334 (1982); Wheeler v State of New York, 104 AD2d 496, 498 (2d Dept 1984). Accordingly, any aspect of the proposed claim attempting to assert intentional infliction of emotional distress does not have the appearance of merit for late claim purposes.

In the meantime, claim number 114105 is still on file and still pending subject to whatever defenses have been raised. Since defendant has not moved to dismiss the claim, and since the claimant has not moved to strike the affirmative defenses, it remains pending whatever its jurisdictional or substantive infirmities.

The only application this Court has before it is one it has interpreted as a motion for permission to serve and file a late claim [M-74218]. That motion is denied.

February 7, 2008
White Plains, New York

Judge of the Court of Claims

[1].Court of Claims Act § 10(6) states in pertinent part: “. . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . .”