Bailment claim was dismissed as untimely and claimant's motion to file a late claim was denied as such relief is unavailable for bailment claims.
|Claimant short name:||WILLIAMS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended sua sponte to reflect the only properly named defendant.|
|Motion number(s):||M-78002, M-78039|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Willie Williams, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 21, 2010|
|See also (multicaptioned case)|
Defendant moves for dismissal of the claim pursuant to CPLR 3211 (a) (2) and (8) on the ground that it was not timely filed or served (Motion No. M-78039). Claimant moves to file a late claim pursuant to Court of Claims Act § 10 (6) (Motion No. M-78002).
Claimant, a pro se inmate, asserts a bailment claim for damage to his typewriter which allegedly occurred during the course of his transfer from Great Meadow Correctional Facility to Gouverneur Correctional Facility (Gouverneur). Claimant alleges that upon his arrival at Gouverneur on July 29, 2009 he discovered his typewriter was not working. He alleges that the typewriter was transferred to three different buses during the course of the trip and that he personally witnessed the careless manner in which his bags were tossed from one bus to the other.
The defendant contends that the claim was neither filed nor served within 120 days following the date the claimant exhausted his administrative remedy as required by Court of Claims § 10 (9). In support of its motion, the defendant submits the decision of the Superintendent of Gouverneur dated October 15, 2009 denying the claimant's appeal. The instant claim was served on March 3, 2010 and filed on March 8, 2010. While the appeal was denied, the Superintendent indicated in his decision that "[he would] allow [their] electrical trades class to diagnose and see if they have the ability to repair using the offered claim amount." (defendant's Exhibit A, Superintendent's Decision on Appeal).
In opposition to the motion, claimant contends that although his appeal was denied by the Superintendent of Gouverneur on October 15, 2009, the claim did not accrue until November 9, 2009 when he was transferred to Clinton Correctional Facility (Clinton). He states in his unsworn opposition papers that he did not receive the Superintendent's decision on the appeal until October 19, 2009 and was led to believe that the typewriter would be repaired until the date of his transfer on November 9, 2009.
Pursuant to Court of Claims Act § 10 (9), a claim "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." It has been held that a cause of action accrues under Court of Claims Act § 10 (9) when notice of the adverse determination is received (Blanche v State of New York, 17 AD3d 1069 ). Here, claimant contends he received the determination on October 19, 2009. As a result, the claim was required to be served and filed by February 16, 2010. The claim served on March 3, 2010 and filed on March 8, 2010 is therefore time barred.
Claimant's argument that he relied on the Superintendent's representation that his typewriter would be repaired is one of equitable estoppel. "[T]he doctrine of equitable estoppel generally is unavailable against a governmental agency in the exercise of its governmental function" (Matter of Amsterdam Nursing Home Corp. (1992) v Daines, 68 AD3d 1591, 1592 ; see also Notaro v Power Auth. of State of N.Y., 41 AD3d 1318, 1319 ). While an exception exists "where a governmental subdivision acts or comports itself wrongfully or negligently, inducing reliance by a party who is entitled to rely and who changes his position to his detriment or prejudice" (Bender v New York City Health & Hosps. Corp., 38 NY2d 662, 668 ), here no such facts exist. The Department of Correctional Services did not act wrongfully when the Superintendent advised the claimant he would allow the electrical trades class to diagnose and, possibly, repair the typewriter. Nor was this statement sufficiently definite to induce reliance by the claimant. Finally, ample time remained for the claimant to file and serve a claim following his transfer to Clinton on November 9, 2009. Accordingly, the claim must be dismissed as untimely filed and served.
Claimant's application for late claim relief pursuant to Court of Claims Act § 10 (6) (Motion No. M-78002) must be denied "because the court lacks the discretionary authority under section 10 (6) to grant permission to file a late claim if that claim arises under section 10 (9)" (Blanche v State of New York, 17 AD3d at 1071 ; citing Roberts v State of New York, 11 AD3d 1000 ). Based on the foregoing, defendant's motion to dismiss the claim (Motion No. M-78039) is granted and the claimant's motion to file a late claim (Motion No. M-78002) is denied.
May 21, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Motion No. M-78002
Motion No. M-78039