New York State Court of Claims

New York State Court of Claims

LOMBARDO v. THE STATE OF NEW YORK, #2009-030-502, Claim No. NONE, Motion No. M-75850


Late claim relief granted, despite service of untimely motion more than one (1) year after accrual. Claim asserts cause of action for conversion. Claimant presumptively person under disability [10(5)] since housed in a state mental health facility, thus time within which to serve and file claim has not yet expired. Having chosen the late claim mechanism to bring claim, claim nonetheless reviewed under 10(6) factors.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
January 26, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for late claim relief:

1-5 Notice of Motion; “Proposed Claim” by Scott Lombardo verified September 26, 2008; Affidavit of Service; “Original” Claim by Scott Lombardo verified September 5, 2008 and attachments; Motion for Permission to File a Late Claim by Scott Lombardo dated September 5, 2008

  1. Affirmation by Dewey Lee, Assistant Attorney General, dated December 8, 2008
  1. “Affidavit” by Scott Lombardo dated December 12, 2008
Mr. Lombardo, currently housed at Mid-Hudson Psychiatric Center, has submitted both a document entitled “proposed claim” verified September 26, 2008, and a document marked “original” claim verified September 5, 2008, in this application for late claim relief. In the document marked proposed claim, there is a notation “see original typed claim” appearing to signify that the claim Mr. Lombardo wants to submit as his proposed claim for late claim purposes is the typewritten claim which contains a handwritten indication that it is “original”, and is verified September 5, 2008 (hereinafter “the claim” or “claim”).

In the claim, Mr. Lombardo writes that his claim is one for conversion, based upon his delivery on or around March 12, 2007 of an envelope containing cash to State employees intended for transmittal to his mother. Claimant avers he had “amassed $600.00 in U.S. paper currency” which he wanted to send to his mother. [Claim, ¶3]. He delivered a sealed envelope containing the money as well as a cash withdrawal form to cover the cost of postage, to Lisa Thorn, his social worker. Ms. Thorn gave the envelope to Mildred Smith, also a social worker. Thereafter, and on March 16, 2007, “Chief SHTA Neale” told claimant that the envelope was opened but he could not say by whom or why. Although claimant does not indicate it in his claim, an investigation must have followed, because he references an attached “Statement of Findings” [Claim, Exhibit A] identifying Ms. Smith as the person who found the money while processing mail. In a letter dated June 6, 2007 Howard Holanchock, the Executive Director at Mid-Hudson, indicated that claimant had been found
“attempting to mail contraband in the amount of $600.00 outside the facility. This is to inform you ten dollars ($10.00) is being placed into your patient account. The remainder, $590.00, is being deposited into MHFPC’s patient donation account.” [Claim, Exhibit B].[1]

Mr. Lombardo asserts that his telephone use and mail communications were restricted, and that he has suffered mental anguish. He asks for judgment in the amount of $590.00, and further asks that the court find Ms. Smith to have “committed a Federal offence [sic] of mail tampering” so that he may reserve the right to press charges against her.

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. A copy of the proposed claim[2] must accompany the motion, allowing the court to ascertain the particulars of the claim, including the date of accrual, specific location of the alleged incident, and what permanent injuries are alleged. See Court of Claims Act §11-b.

Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . . ” Court of Claims Act § 10(6). In this connection, a motion is “made when a notice of motion . . . is served” Civil Practice Law and Rules §2211; see also Jenkins v State of New York, 119 Misc 2d 144, 145 (Ct Cl 1983). The defendant indicates that the applicable statute of limitations for conversion is one year and that the motion is untimely because it was served on October 29, 2008 [see Affirmation by Dewey Lee, Assistant Attorney General, ¶2]. The applicable statute of limitations has been interpreted elsewhere to be three (3) years. [See Dippolito v State of New York, 192 Misc 2d 395 (Ct Cl 2002); Civil Practice Law and Rules §214]. Based upon a date of accrual of June 6, 2007, when the money was allegedly converted to the defendant’s own use, the motion is timely.

While it is on the basis of untimeliness that the defendant primarily opposes the motion, more significantly claimant has indicated that he is a person under a legal disability by reason of mental illness, and refers to Court of Claims Act §10(5). [Motion for Permission to File a Late Claim dated September 5, 2008; “Affidavit” dated December 12, 2008].

As a person under a legal disability [see Civil Practice Law and Rules §208][3], Mr. Lombardo would be entitled to the benefit of the tolling provisions of Court of Claims Act §10(5)[4] allowing a claim to be served and filed within two (2) years of removal of the disability [see Boland v State of New York, 30 NY2d 337 (1972); Ferrucci v State of New York, 30 NY2d 859 (1972)]; but in any event not later than ten (10) years after the accrual of the claim with respect to a disability premised on insanity. [See Civil Practice Law and Rules §208; Thomas v State of New York, UID # 2007-028-550, Claim No. 105847, Motion Nos. M-66169, CM-71483 (Sise, P.J., July 5, 2007)]. The legal disability is personal to the individual who suffers from the infirmity. Since claimant is apparently involuntarily committed as an individual found not guilty by reason of mental defect [see Lombardo v Holanchock, supra] in a state mental health facility, and has not been released, the presumption of competency is overcome, the time within which to file a claim has not yet expired, thus no motion for late claim relief would appear necessary. See Boland v State of New York, supra; Frank v State of New York, UID # 2008-039-085, Claim No. 114404, Motion Nos. M-74227, M-74612 (Ferreira, J., July 15, 2008).[5]

Nonetheless, since claimant does not appear to have served the claim upon the Attorney General’s Office by certified mail, return receipt requested as required, nor has he filed the claim in the office of the Chief Clerk with an appropriate filing fee or application for waiver of same, the court is constrained from simply indicating that the claim has been served and filed as required, and then granting defendant an opportunity to serve and file its answer. See e.g. Frank v State of New York, supra. Additionally, although claimant’s choice of the mechanism for trying to bring his claim before the court in the form of (perhaps) unnecessarily seeking permission to file a late claim subjects his claim to greater scrutiny than he might desire, this is what he has sought, thus the court will examine claimant’s entitlement to late claim relief based upon this submission.

Claimant does not offer any particular excuse beyond his status as a layperson, and his lack of access to legal counsel or to a prison law library for his failure to serve his claim within ninety (90) days of accrual. Nonetheless, “. . . [e]ven if the excuse for failing to file a timely claim is ‘not compelling,’ the denial of a motion to file a late claim may . . . constitute an improvident exercise of discretion where the delay is minimal, the State suffered no prejudice, and there may be issues of fact as to the merits of the claim . . . (citations omitted).” Jomarron v State of New York, 23 AD3d 527 (2d Dept 2005).

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting claimant’s motion. Indeed, the matter appears to have been investigated within the mental health facility, and some documentary materials may be available. Any lapse of time is not so great that the State’s ability to further investigate is impeded to its prejudice. Claimant’s remedy for money damages is in the Court of Claims.

A claim appears to be “meritorious” within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). “In order to establish a conversion claim, a . . . [claimant] must show that he had ‘an immediate superior right of possession to the identifiable fund and the exercise by defendants of unauthorized dominion over the money in question to the exclusion of [claimant’s] rights’ . . . (citation omitted).” Fitzpatrick House III, LLC v Neighborhood Youth & Family Services, 55 AD3d 664 (2d Dept 2008); see Dippolito v State of New York, supra. Claimant need not establish a prima facie case at this point, but rather the appearance of merit. If the allegations in the claim are accepted as true for the purposes of this motion, claimant has made the requisite showing of merit in order to permit late filing of his claim. Dippolito v State of New York, supra.

Accordingly, after careful consideration of the pertinent factors, the motion is granted. Claimant is directed to serve a claim upon the Attorney General, and to file the claim with proof of service with the Clerk of the Court of Claims, all within forty-five (45) days from the date of filing of this Decision and Order. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court.

January 26, 2009
White Plains, New York

Judge of the Court of Claims

[1]. Claimant apparently then pursued a lawsuit in federal court, alleging various deprivations of due process. See Lombardo v Holanchock, 2008 WL 2543573 (SDNY June 25, 2008). In dismissing most of that federal lawsuit, the judge notes that claimant “has an adequate state remedy for the seizures of his money because he can bring an action for conversion of his property . . . (citations omitted).” [Ibid.].
[2]. Court of Claims Act § 10(6) states in pertinent part: “. . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . . ”
[3]. Civil Practice Law and Rules §208 provides in pertinent part: “. . . Infancy, insanity. If a person entitled to commence an action is under a disability because of infancy or insanity at the time the cause of action accrues, and the time otherwise limited for commencing the action is three years or more and expires no later than three years after the disability ceases, . . . the time within which the action must be commenced shall be extended to three years after the disability ceases . . . ; if the time otherwise limited is less than three years, the time shall be extended by the period of disability. The time within which the action must be commenced shall not be extended by this provision beyond ten years after the cause of action accrues, except, in any action other than for medical, dental or podiatric malpractice, where the person was under a disability due to infancy . . . ”
[4]. Court of Claims Act §10(5) provides: “If the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed.”
[5]. “. . . [C]laimant’s undisputed confinement at . . .[Manhattan Psychiatric Center] is sufficient to overcome the presumption of competency for purposes of Court of Claims Act §10(5).” Frank v State of New York, supra.