New York State Court of Claims

New York State Court of Claims

CARRELERO v. THE STATE OF NEW YORK, #2008-040-065, Claim No. NONE, Motion No. M-75394


Synopsis


Pro se
motion to file a late claim denied as §10(6) relief not available to bailment claims accruing under CCA § 10(9).

Case Information

UID:
2008-040-065
Claimant(s):
BATISTA CARRELERO
Claimant short name:
CARRELERO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-75394
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
Batista Carrelero, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Paul F. Cagino, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 10, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Movant’s application to serve and file a late claim pursuant to Court of Claims Act § 10(6) is denied.

The proposed claim asserts that items of Mr. Carrelero’s personal property were improperly discarded as a result of the State’s negligence while he was incarcerated in the Special Housing Unit (hereinafter SHU) at Upstate Correctional Facility in Malone, New York. Upon his release from SHU on June 17, 2008, Movant discovered his property had been discarded. Thus, the proposed claim asserts a bailment cause of action.

The Appellate Division, Fourth Department, has determined that late claim relief pursuant to Court of Claims Act § 10(6) is not available to bailment claims accruing under Court of Claims Act § 10(9) (Blanche v State of New York, 17 AD3d 1069 [4th Dept 2005]; Roberts v State of New York, 11 AD3d 1000 [4th Dept 2004]). The Court must follow the holding in Roberts under the doctrine of stare decisis, unless and until either the Court of Appeals or the Third Department (the governing appellate division for this claim) orders to the contrary (Mountain View Coach Lines v Storms, 102 AD2d 663, 664 [2d Dept 1984]; see Matter of Patrick B.B., 284 AD2d 636 [3d Dept 2001]). Accordingly, this Court does not have the authority to consider Movant’s application and the motion for leave to late file a claim is denied (Edwards v State of New York, Ct Cl, Claim No. None, Motion No. M-73021, April 24, 2007, McCarthy, J. [2007-040-019]; Lopez v State of New York, Ct Cl, Claim No. None, Motion No. M-69720, March 28, 2005, Lebous, J. [UID No. 2005-019-522]; Sturdivant v State of New York, Ct Cl, Claim No. None, Motion No. M-69184, December 10, 2004, Scuccimarra, J. [UID No. 2004-030-601]).


October 10, 2008
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered on Movant’s request for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6):

Papers Numbered:

Motion and proposed claim 1


Affirmation in Opposition & attached
Affidavit 2