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
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
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
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.).