New York State Court of Claims

New York State Court of Claims

KELLY v. THE STATE OF NEW YORK, #2008-030-539, Claim No. NONE, Motion Nos. M-74897, CM-75031


Late claim motion granted. Inmate seeks recovery for $22.50 he paid to defendant to obtain prescribed photo-gray eyeglass lenses, that defendant allegedly failed to deliver. Appearance of merit to cause of action for breach of contract

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:
July 2, 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

serve and file a late claim:

1,2 Notice of Motion for permission to file a late claim; Motion for Permission to File a Late Claim by Daryl Kelly Sr., claimant and attached papers

3,4 Notice of Cross-Motion; Affirmation by J. Gardner Ryan, Assistant Attorney General[1]

  1. Reply Affirmation by Daryl Kelly, Sr., claimant, and attached papers
6,7 Filed papers: Claim No. 112807; Kelly v State of New York, UID # 2008-030-508, Claim No. 112807, Motion Nos. M-74431, CM-74476 (Scuccimarra, J., filed March 27, 2008)

In a Decision and Order filed on March 27, 2008, the prior claim filed by claimant was dismissed for service related reasons, with the court specifically indicating that such dismissal was not on the merits. [See Kelly v State of New York, UID # 2008-030-508, Claim No. 112807, Motion Nos. M-74431, CM-74476 (Scuccimarra, J., filed March 27, 2008)]. The earlier claim was timely then, because it was served on the Attorney General on September 25, 2006, just within six (6) months of claimant’s receipt of purportedly incorrect eyeglasses on March 27, 2006. [See Court of Claims Act §10(4)[2]]. Since claimant did not serve the Attorney General with a copy of the claim as required by Court of Claims Act §11(a), however, he failed to obtain personal jurisdiction over the defendant
The present motion for permission to serve and file a late claim follows such dismissal.

Daryl Kelly alleges in the proposed claim [see Motion for Permission to File a Late Claim, Exhibit 1] that defendant’s agents at Green Haven Correctional Facility negligently or intentionally failed to provide him with eyeglasses containing prescribed photo-gray lenses, although he had paid for same out of his inmate account in or about October 2005, in the amount of $22.50. Instead, he avers, he received glasses on March 27, 2006 that did not contain the photo-sensitive lenses he had paid for, but instead were the standard state issue eyeglasses which eligible inmates are entitled to receive free of charge every two years. After he realized that the lenses were not correct, he filed a grievance which he indicates was denied on appeal on August 2, 2006.

Other allegations in the claim include a negligent failure of medical staff to ascertain that the eyeglass lenses were not the correct prescription, causing claimant to suffer “from migraine headaches, a sinus condition, and blurred vision . . . ” and defendant’s overall “deliberate indifference.” [Motion for Permission to File a Late Claim, Exhibit 1, ¶8]. He also writes in his proposed claim:
“. . . claimant has already acquired independent eye-ware to protect his eyes. Claimant has also been prescribed (ketorolac tromethamine ophthalmic solution), for treatment of his eye problem, and does not require photo-gray eyeglasses for his eyes . . . Claimant should not be forced to wait for or accept eyeglasses that he no longer needs.” [Ibid. ¶¶ 8 and 9].

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.[3] The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

A copy of the proposed claim[4], must accompany the motion, allowing the court to ascertain the particulars of the claim, including the date of accrual, specific location of the alleged accident, and what permanent injuries are alleged. See Court of Claims Act §11(b); 22 NYCRR §206.6. Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . 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 and rules . . .”Court of Claims Act § 10(6). Several different theories of liability might arise from the facts asserted herein. The clearest correlation is treating the claim as failure to deliver goods paid for, that is, as a claim alleging a breach of express or implied contract. The dates of accrual alleged are somewhat sketchy, however. Nonetheless, the motion is timely for most possible causes of action utilizing either of the dates referred to within the claim, namely, “on or about October 2005” when he was purportedly prescribed the photo-gray lenses, or March 27, 2006, when the incorrect eyeglasses were delivered. The statute of limitations applicable for citizens not suing in the court of claims is six (6) years for breach of contract, thus the motion is timely as a breach of contract claim. [Civil Practice Law and Rule §213]. If a negligence or medical malpractice cause of action is made out, three (3) years and two and one-half (2 ½ ) year statutes of limitation apply, thus the motion is timely if the date of accrual is March 27, 2006 for that purpose as well, and may be timely for a date of accrual in October 2005 depending upon the specific date. [Civil Practice Law and Rules §§214, 214-a].

Claimant alleges that delay in filing his claim was caused by a “technicality” in that he attempted to serve and file the claim earlier. [Motion for Permission to File a Late Claim, ¶6]. He alleges that the State has had notice since August 22, 2006 when he avers he served the earlier claim by regular mail, and has had ample opportunity to investigate the claim as evidenced by the answer filed with respect to the first claim, that there is no prejudice, that he has no other remedy, and that the claim is meritorious.

A claim appears to be “meritorious” within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that 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 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit.

The excuse offered is reasonable, the State has had notice and an opportunity to investigate for some time, and there is no discernable prejudice. Claimant does not appear to have another remedy. Accordingly, all these factors weigh toward granting the motion.

It is well settled that the appearance of merit is viewed as the most important factor to consider in an application to serve and file a late claim, as it would be an act of futility to permit service of a late claim when it is patently defective or is subject to a complete defense. If the allegations in the claim are accepted as true for the purposes of the motion, claimant has made the requisite showing of merit at least with respect to a cause of action seeking recovery of the $22.50 he avers he paid in order to obtain then prescribed photo-gray lenses. [Motion for Permission to File a Late Claim, Exhibit 1, ¶11].

Claimant has also included as items of damage “(2) cost of legal copies and preparation

. . . $50.00; (3) court fees . . . $15.00, (4) cost of mailing . . . $12.50, [and] (5) punitive damages $100.00.” [Id.]. The court notes that claimant may not recover punitive damages, since same are not available against the State of New York [see generally Sharapata v Town of Islip, 56 NY2d 332, 339 (1982)].

Accordingly, after carefully balancing the pertinent statutory factors, claimant’s motion [M-74897] for permission to serve and file a late claim is hereby granted; defendant’s cross-motion [CM-75031] to “dismiss” is denied.[5] Claimant is directed to serve his claim upon the Attorney General, and to file it with the Chief Clerk of the Court of Claims, within thirty (30) days from the date of filing of this decision and order in the Clerk’s office, with such service and filing in accordance with the requirements of the Court of Claims Act, as well as the requirements for the contents of a claim, including specific dates of accrual.

July 2, 2008
White Plains, New York

Judge of the Court of Claims

[1].Defendant has brought a “notice of cross-motion” seeking dismissal of “the filed claim”, supported by a three paragraph affirmation saying “the papers submitted . . . neither describe the nature of the cause of action to be asserted, nor attach a proposed claim so that the timeliness and sufficiency of the proposed claim and motion can be addressed . . . The papers served do not meet the minimal requirements of CPLR §2214 and Court of Claims Act §10(6).” [Notice of Cross Motion; Affirmation by J. Gardner Ryan, Assistant Attorney General]. An affidavit of service filed with the motion papers indicates that the motion and the supporting papers - which include a proposed claim - was served on the Attorney General’s Office both at the regional and Albany office. Without information from defendant by a person with knowledge of the record keeping practices of the Attorney General’s Office, the presumption is that defendant was served with a complete copy of the motion as attested to in the sworn affidavit of service.
[2]. “A claim for breach of contract, express or implied, and any other claim not otherwise provided for by this section, over which jurisdiction has been conferred upon the court of claims, shall be filed and served upon the attorney general within six months after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefore, in which event the claim shall be filed and served upon the attorney general within two years after such accrual.” Court of Claims Act §10(4).
[3]. The defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)[“Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted).”]
[4]. 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 . . . ”
[5].Since no claim has been served and filed yet there is no claim to “dismiss.”