New York State Court of Claims

New York State Court of Claims

BELOT, JR. v. THE STATE OF NEW YORK, #2008-032-126, Claim No. N/A, Motion No. M-75246


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:
Jean Belot, Jr., Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
December 4, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


By a decision and order filed November 2, 2007, a motion by claimant for a “time extension or permission to file claim late” was denied (Belot v The State of New York, UID #2007-028-577, Claim No. NONE, Motion No. M-73004 [Ct Cl Oct. 10, 2007], Sise, P.J.). He now moves “for an Order to Vacate or Reverse the dismissal of [his] timely submitted claim.”

The events giving rise to the cause of action at issue here occurred between May 30, 2006 and June 1, 2006, when some of claimant’s personal property was lost by State officials when they moved him from one State correctional facility to another. Property loss claims by inmates in the custody of the Department of Correctional Services are governed by section 10(9) of the Court of Claims Act, which provides that a claim must be filed and served within 120 days after the litigant exhausts his or her administrative remedy. Claimant filed an institutional claim based on this alleged property loss. That claim was denied in late October 2006, and claimant received notification of the denial on November 6, 2006, the date from which the 120-day period is to be counted (Blanche v State of New York, 17 AD3d 1069 [4th Dept 2005]). Claimant had until March 6, 2007, therefore, to commence an action in the Court of Claims by filing a claim with the Court and serving a copy of that claim on the Attorney General, either in person or by certified mail, return receipt requested (Court of Claims Act § 10[6]).

Claimant acted within the 120-day period but, rather than taking the steps outlined above, he instituted the motion for a “time extension or permission to file claim late” by submitting a notice of motion, a supporting affidavit, and a document whose caption read simply “Claim,” as well as other papers not relevant here. The document that was captioned “Claim” was considered by both the filing office and the Court to be the “proposed claim” which must accompany any motion for permission to file a late claim (Court of Claims Act § 10[6]). Claimant’s motion was denied on the ground that there is no authority for extending the time limitations to commence an action contained in the Court of Claims Act and because late claim relief is not available in connection with the property loss claims governed by Court of Claims Act § 10(9) (Roberts v State of New York, 11 AD3d 1000 [4th Dept 2004]; see also Murray v State of New York, 5

Misc 3d 398 [Ct Cl 2004]; McCann v State of New York, 194 Misc 2d 340 [Ct Cl 2002]).

The Court also rejected an argument, raised for the first time in claimant’s reply brief, that the document captioned “Claim” was, in fact, a separate pleading that had simply been filed “simultaneously” with the motion. Consequently, claimant argued, the Court should have accepted it as commencing an action. This argument was rejected because there had been nothing in claimant’s motion papers, or on the face of the document itself, to indicate that it was anything other than the statutorily required proposed claim. The Court further noted that in one of the other submissions claimant had referred to the “attached draft claim,” that requiring the Court’s filing office to guess at a claimant’s intention “would cause considerable confusion and situations that would require much time and effort to untangle,” and that if a different guess was made by the Attorney General’s Office, “the State could wind up in default with no warning or reason to be concerned.”

Claimant now seeks reconsideration of this earlier decision, a decision that he characterizes as dismissing his timely submitted claim. As explained above, the decision in Motion No. M-73004 was, in fact, denial of his request for either an extension of time or permission to late file and rejection of his argument that a document submitted in support of his motion was actually a claim that should have commenced an action. Although claimant characterizes the instant motion as one brought pursuant to CPLR 5015 and 3026,[1] it is more accurately a motion to reargue (CPLR 2221[d]): a motion “based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion” (Loris v S & W Realty Corp., 16 AD3d 729, 730 [3d Dept 2005]).

A motion to reargue must be made within 30 days after service of a copy of the order determining the prior motion (CPLR 2221[d][3]). The instant motion was not commenced until approximately eight months after the decision and order in Motion No. M-73004 was issued, and for that reason it must be dismissed (Selletti v Liotti, 45 AD3d 668 [2d Dept 2007]). Counsel for defendant has informed the Court, however, that claimant filed an appeal from the

November 2007 order and that said appeal is now pending. Consequently, claimant will have his opportunity to obtain judicial review of this issue.

Claimant’s motion is denied.

December 4, 2008
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion and Supporting Affidavit of Jean Belot, Jr., with annexed Exhibits;

2. Affirmation in Opposition of Paul F. Cagino, AAG.

Filed papers: Decision and Order, Motion No. M-73004

[1].CPLR 5015 provides a mechanism for obtaining relief from a judgment or order on specific grounds (excusable default, newly discovered evidence, fraud or misrepresentation, lack of jurisdiction, or reversal or modification of a prior order or judgment). CPLR 3026 provides that “[p]leadings shall be liberally construed” and is inapplicable to this situation.