New York State Court of Claims

New York State Court of Claims

FREEMAN v. THE STATE OF NEW YORK, #2008-042-502, Claim No. NONE, Motion No. M-73993


Synopsis


This is a motion brought by claimant for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Claimant’s alleges in his proposed claim that while he was an inmate at Oneida and Mid-State Correctional Facilities, he sustained losses of personal property. The Court denied claimant’s motion.

Case Information

UID:
2008-042-502
Claimant(s):
RODNEY FREEMAN
Claimant short name:
FREEMAN
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-73993
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
RODNEY FREEMAN #05-R-1346, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 13, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This matter comes before the court on a motion by claimant for permission to file a late claim, pursuant to Court of Claims Act § 10 (6). Claimant’s proposed claim alleges that while he was an inmate at the Oneida and Mid-State Correctional Facilities he sustained losses of personal property. Claimant seeks damages of $601.00. The court has considered the following papers:[1]
1. Motion for Permission to File Late Claim, filed September 24, 2007, together with exhibits annexed thereto
2. Opposition affirmation of Joel L. Marmelstein, Esq., dated December 17, 2007
3. Reply “Affirmation” of Rodney Freeman, dated December 28, 2007

________________________________________


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 relevant part:

Mr. Freeman was on “out-to-court” status from April 2, 2007 to August 27, 2007. As he was still “owned”[2] by Auburn Correctional Facility, all his mail was held at our facility and given to him upon his return.


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 late claim.



March 13, 2008
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims




[1]. The moving papers fail to include a “notice of motion” as required by CPLR Rule 2214 (a), and the claimant’s reply “affirmation” does not comply with the provisions of CPLR Rule 2106. However, since the defendant makes no objection on these grounds, the court is considering the motion on its merits.
[2]. A regrettable, deplorable and inappropriate use of the word, but indicative of the ongoing custody of claimant by the Department of Correctional Services during claimant’s “out-to-court” status.