New York State Court of Claims

New York State Court of Claims

SHELL v. THE STATE OF NEW YORK, #2009-005-009, Claim No. NONE, Motion No. M-69333


Synopsis


Claimant's motion for permission to re-argue and/or renew his prior motion (which sought permission to serve and file a late claim in bailment) was denied, and the Court found that claimant never took any affirmative steps to timely file his claim with the Court.

Case Information

UID:
2009-005-009
Claimant(s):
HAROLD J. SHELL, JR.
Claimant short name:
SHELL
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-69333
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
HAROLD J. SHELL, JR., Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
February 17, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant has brought this motion seeking permission to re-argue and/or renew a prior motion in which he sought permission to serve and file a late claim sounding in bailment.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support, with Exhibits 1,2


Affirmation in Opposition 3

Reply Affidavit, with Exhibit 4

In a prior Decision and Order[1], this Court denied claimant's application seeking permission to serve and file a late bailment claim, based upon the Appellate Division's decision in Roberts v State of New York (11 AD3d 1000). In the instant application, claimant has presented no legal argument as to why the Appellate Division's decision should not have been followed with respect to his application. In other words, claimant has not submitted any information which would lead this Court to reconsider its prior determination that late claim relief is not available to inmate bailment claims.

Instead, claimant contends that this Court, in its prior Decision and Order, failed to determine whether claimant had timely filed his bailment claim with the Clerk of the Court of Claims. Apparently, it is claimant's position that the proposed claim submitted with claimant's prior motion for late claim relief should have been accepted for filing by the Clerk of the Court, if it was timely. A review of the papers submitted by claimant in his original motion clearly establishes that claimant was seeking permission, pursuant to § 10(6) of the Court of Claims Act, to file a late claim. Pursuant to the requirements of § 10(6), a proposed claim must accompany such an application, and such a proposed claim was included with claimant's moving papers. Accordingly, claimant's motion was properly processed by personnel at the Clerk's office. There was absolutely no basis whatsoever for court personnel to conclude that claimant was also attempting to file this proposed claim as a claim in compliance with § 11(a) of the Court of Claims Act.

In short, at the time he filed his original motion, claimant had the option to either seek late claim relief (as he did), file a claim, or both. Although claimant argues that he did both file a claim and seek late claim relief, in actuality he did not do so, but only sought late claim relief, which was ultimately denied. Claimant never took any affirmative steps to file his claim with the Clerk of the Court and to this date, no claim number has ever been assigned. Since there is no pending claim, there is no basis for this Court to make any determination as to the timeliness of filing.

Finally, the Court notes that claimant, in this instant motion, continues to address the statutory factors which must be considered in a late claim application brought under § 10(6). As stated previously herein, these factors are not pertinent herein, since late claim relief under § 10(6) is not available to inmate bailment claims.

Based on the foregoing, it is therefore

ORDERED, that Motion No. M-69333 is hereby DENIED.


February 17, 2005
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims




[1] See Decision and Order to Motion No. M-68955.