Claimant states that the underlying incident occurred on September 12, 2006.
He alleges that he subsequently exhausted administrative procedures on December
21, 2006, that his time to file the claim expired on April 21, 2007, and that a
claim was not timely filed. In fact, this motion was not mailed to the Attorney
General and the Clerk of the Court of Claims until September 11, 2007. However,
claimant argues that he is entitled to equitable tolling of the 120 day period
as a result of his change of status from April 2, 2007 until August 27, 2007.
Specifically, claimant argues that:
April 2nd, 2007 , [sic] would have left claimant with nineteen (19) more days to
have his claim filed with the Court. However, as exhibited previously, claimant
was, on April 2, 2007, transferred to the custody of the New York City
Department of Correction (See, Motion to File Late Claim). Claimant did not
return to State custody until August 27, 2007.
Claimant argues that Court of Claims Act Section 10 (9) applies only to inmates
in the custody of the Department of Correctional Services and that since he was
not in state custody, his time should be tolled.
Defendant argues simply that there is no late claim relief under Court of
Claims Act Section 10 (6) for bailment claims which accrue under Court of Claims
Act Section 10 (9).
Court of Claims Act Section 10 (9) provides that:
A claim of any inmate in the custody of the department of correctional services
for recovery of damages for injury to or loss of personal property may not be
filed unless and until the inmate has exhausted the personal property claims
administrative remedy, established for inmates by the department. Such claim
must be filed and served within one hundred twenty days after the date on which
the inmate has exhausted such remedy.
Claimant’s argument that he is entitled to seek to file a late claim
pursuant to Court of Claims Act Section 10 (6) on the ground that he was not
“an inmate in the custody of the department of correctional
services” and thus bound by the time limitations of Court of Claims Act
Section 10 (9) is without merit.
First, while claimant briefly may have been an inmate under the supervision of
the New York City Department of Corrections, that does not mean that he ceased
to be within the purview of the New York State Department of Correctional
Services. The court has no admissible information as to the reason for
claimant’s stay with the city’s corrections department.
Nevertheless, that stay does not equate to a lack of custody by the state. By
way of example, Correction Law Article 4 and Article 6 both discuss transfers of
inmates to other facilities, such as county jail facilities; nevertheless the
transfer does not result in a change of custody (see e.g. Correction Law
§ 94 (2), “[a]n inmate so transferred shall continue to be in the
custody of the state department of correction but shall, during the period of
such transfer, be in the care of the head of the institution to which he is
transferred.”). Claimant also included as an exhibit, a September 5, 2007
letter from the superintendent of the Auburn Correctional Facility to Albany
Supreme Court Justice John Egan, Jr., in which the superintendent states, in
Mr. Freeman was on “out-to-court” status from April 2, 2007 to
August 27, 2007. As he was still
by Auburn Correctional
Facility, all his mail was held at our facility and given to him upon his
More importantly though, the focus of Court of Claims Act Section 10 (9) is on
the nature of the claim, rather than the temporary location of the inmate. This
focus was emphasized in Roberts v State of New York, 11 AD3d 1000 (4th
Dept 2004), where the court stated that:
we conclude that the discretionary authority to grant permission to file a late
claim pursuant to Court of Claims Act § 10 (6) does not apply to the
inmate [property] claims herein . . . We conclude that the failure to
include inmate property claims in the subdivisions preceding subdivision
(6) when they were specifically made the subject of subdivision (9) “may
be construed as an indication that [their] exclusion was intended”
(McKinney’s Cons Laws of NY, Book 1, Statutes § 74).
(emphasis added) (Roberts v State of New York, 11 AD3d 1000, 1001;
Blanche v State of New York, 17 AD3d 1069 [4th Dept 2005]). Accordingly,
this court is compelled to deny claimant’s motion for permission to file a