New York State Court of Claims

New York State Court of Claims

FREEMAN v. THE STATE OF NEW YORK, #2008-042-519, Claim No. NONE, Motion No. M-75122


Synopsis


This is a motion brought by pro se claimant to renew a prior motion for permission to file a late claim. Claimant contends that he is entitled to a tolling of the applicable time limitation pursuant to Court of Claims Act Section 10 (5) on the grounds that he was under a legal disability, to wit: a mental disability. Claimant’s motion is denied.

Case Information

UID:
2008-042-519
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-75122
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:
October 3, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This matter comes before the court on a motion by the pro se claimant to renew a prior motion for permission to file a late claim. The court has considered the following papers:
1. Notice of Motion, filed June 18, 2008
2. Affidavit of Rodney Freeman, claimant pro se, sworn to June 10, 2008
3. Exhibits A - B, annexed to the moving papers
4. Opposition affirmation of Joel L. Marmelstein, Esq., dated August 1, 2008
_______________________________________

By a written decision dated March 13, 2008 and filed March 19, 2008 this Court denied claimant’s motion for permission to late file. The proposed claim seeks to recover damages of $601.00 for losses of personal property. In the prior application, claimant contended that he was entitled to an equitable tolling of the applicable time limitations as a result of the alleged transfer of his custody from the New York State Department of Correctional Services to the New York City Department of Corrections. The court found that the requisite time limitation had expired, that in fact a transfer of custody did not occur, and 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).

Claimant now contends that he is entitled to a tolling of the applicable time limitation pursuant to Court of Claims Act Section 10 (5) on the grounds that he was under a legal disability - to wit, a mental disability - that prevented him from timely filing his claim.

The defendant opposes this motion, contending that it amounts to an attempt for permission to late file, which is not permitted for bailment actions, and that the motion is not based upon previously undiscovered facts, but is rather a repeat of the prior motion, now premised upon a new theory.

A review of the prior motion for permission to late file indicates that the original motion is dated September 11, 2007 and was filed on September 24, 2007. Nowhere in the signed notarized “motion” did claimant allege any mental disability. The claim itself alleges that the claim accrued on September 12, 2006, but that thereafter claimant filed administrative grievances and that he subsequently exhausted his administrative remedies on December 21, 2006. Nowhere in the prior motion papers did claimant make any mention of a legal disability or his now-alleged mental condition.

In the motion currently before the court, claimant alleges for the first time that he has been mentally disabled since July 17, 2006, that the disability still continues, and that he is thus legally disabled and entitled to a tolling of the applicable time limitation for action.

As noted in this court’s prior decision of March 13, 2008 the provisions of Court of Claims Act Section 10 (6), which provide for late filing of certain claims, are not applicable to inmate claims for damage or loss of personal property (Roberts v State of New York, 11 AD3d 1000, 1001; Blanche v State of New York, 17 AD3d 1069 [4th Dept 2005]).

Therefore, the underlying requested relief of permission to late file, pursuant to

Court of Claims Act Section 10 (6), is inapplicable here and the motion to renew cannot be granted because this relief cannot be granted.

However, if in fact the claimant was suffering from a legal disability at the time the claim arose and continues to suffer from such a disability, a different issue arises.

Court of Claims Act Section 10 (5) provides that “[i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed.”

Turning to the claimant’s allegation that he is under a “legal disability”, his affidavit in support of his motion for leave to renew does not explain the mental disability. Rather, he states that he has had to undergo “psychiatric stabilization” on two occasions, that he has ongoing treatment and that he currently takes “anti-psychotic medications”. These general descriptions by one unqualified to diagnose mental illness are not sufficient to establish a legal disability. There is no admissible evidence to support claimant’s claim of legal disability. In fact, the two exhibits attached in support of the motion offer no diagnosis whatsoever.

The court is denying claimant’s motion to renew his original motion seeking permission to late file a claim. As noted above, the late filing provisions of Court of Claims Act Section 10 (6) are inapplicable to claims for damages brought pursuant to Court of Claims Act Section 10 (9).

Insofar as claimant has sought to invoke the tolling provisions of Court of Claims Act Section 10 (5) this motion is denied for insufficient proof (see Freeman v State of New York, UID No. 2008-033-285, Claim No. NONE, Motion No. M-74148, April 8, 2008, Lack, J., in which the court denied that portion of claimant’s motion seeking the tolling pursuant to Court of Claims Act Section 10 (5) as “movant fails to include any affidavit from a medical expert indicating that he was unable to secure his claim due to a mental disability”). However, if in fact claimant, upon proper proof, is entitled to relief under Court of Claims Act Section 10 (5), then he has two years from the removal of the disability to file and serve a claim (McNulty v Willard Correctional Facility, et al., UID No. 2001-005-535, Claim No. 103826, Motion No. M-63443, October 23, 2001, Corbett, J.).



October 3, 2008
Utica, New York

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