Motion for late claim relief with regard to bailment claim denied. Claimant served motion and attached claim by certified mail, return receipt requested within 120 days of accrual. Clerk directed to file with already filed claim that had been served by regular mail, and responded to with answer. State invited to serve amended answer if necessary.
|Claimant short name:||DUPONT|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||DOMINIC DUPONT, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||July 7, 2010|
|See also (multicaptioned case)|
The following papers were read and considered on claimant's motion for permission to serve and file a late claim:
1,2 Notice of Motion, Affidavit in Support of Motion to Late File A Claim by Dominic Dupont, Claimant, and attached papers
3 Affirmation in Opposition to Leave to File Late Claim by Barry Kaufman, Assistant Attorney General
4,5 Filed Papers: Claim Number 118089, Answer to Claim Number 118089
Dominic Dupont alleges in his claim that on or about October 11, 2009 defendant's agents at Green Haven Correctional Facility [Green Haven] failed to return his property - specifically a book - after its review by the media review committee, and his consent to removal of 4 or 5 of its pages. [Claim No. 118089, ¶ 2]. Thereafter, claimant pursued his administrative personal property claims remedy, ultimately resulting in the Superintendent's denial of the appeal of his claim on January 21, 2010. [Ibid. Addendum]. Claim number 118089 was thereafter filed in the Office of the Chief Clerk of the Court of Claims on March 3, 2010. Apparently such claim was timely served on the Attorney General's Office within 120 days of exhaustion of the denial of his administrative claim, but by regular mail, rather than by certified mail, return receipt requested as required. Court of Claims Act §§10(9); 11(a)(i).
In an answer filed on April 15, 2010 the defendant raised as its Fourth Defense that the Court lacks personal jurisdiction as the claim was not served on defendant by the proper means, duly alerting claimant to such defense, and thus preserving it. Court of Claims Act §11(c). No motion to dismiss, however, was made.
Apparently in reaction to receiving such answer, claimant served and filed this motion for late claim relief. The motion was served on the defendant on or about May 6, 2010 by certified mail, return receipt requested according to the affidavit of service attached, and filed in the Office of Chief Clerk of the Court of Claims on May 14, 2010. The motion contains most of the arguments concerning late claim relief [see Court of Claims Act §10(6)], and attaches a complete copy of the claim already filed as Claim Number 118089 with the attachments thereto, including the personal property claim form and final appeal decision.
In opposition to the motion for late claim relief, defendant indicates that the excuse offered concerning ignorance of the law regarding service is not valid, and that the form claim used - wherein a date of accrual is to be set forth at paragraph 4 of the form - contains only the information that the claim accrued on "October 11" without a calendar year indicated. [Affirmation in Opposition to Leave to File Late Claim by Barry Kaufman, Assistant Attorney General,¶ ¶ 4, 5]. Of course, directly above such paragraph is paragraph 2 of the form, wherein claimant indicates that the package and media review committee form at issue were received on October 11, 2009. No mention is made of Claim Number 118089 in defendant's opposition papers.
More significantly, however, at the time this motion was made(1) , claimant was still within 120 days of having exhausted his administrative remedies, given the denial of his facility claim on January 21, 2010, and his likely receipt of such denial shortly thereafter. By this Court's calculations, a claim served by May 21, 2010 would have been timely.
Unlike its discretionary authority with respect to other causes of action heard by this Court, the Court of Claims does not have discretion to grant permission to file a late claim if that claim arises under Court of Claims Act §10(9), [see Blanche v State of New York, 17 AD3d 1069 (4th Dept 2005); Roberts v State of New York, 11 AD3d 1000 (4th dept 2004)] nor does timely service of a notice of intention to file a claim act to extend the time within which to thereafter serve and file a claim. Pristell v State of New York, 40 AD3d 1198, 1198-1199 (3d Dept 2007).
Here, however, claimant has already timely filed the claim in the Office of the Chief Clerk of the Court of Claims, and also (apparently) timely served the claim upon the Office of the Attorney General by certified mail, return receipt requested, on or about May 6, 2010, albeit in a motion he mistakenly believed he needed to make, assuming he exhausted his administrative remedies on or about January 21, 2010 upon receipt of final denial of his facility claim.
Based on the foregoing, while the motion for late claim relief is denied [M-78267], based upon the fact that late claim relief is not available for a property loss cause of action derived from Court of Claims Act §10(9) alleged therein, the motion papers and response are directed to be filed with the file maintained by the Office of the Chief Clerk of the Court of Claims for Claim Number 118089. If claimant has further proof of service of his motion upon the Attorney General's Office, such as a photocopy of the return receipt card, same should be filed with the Clerk.
Should defendant wish to serve and file an amended answer to Claim Number 118089, given this Court's finding herein that Claim Number 118089 has apparently been timely served by the proper method under the Court of Claims Act, it may do so within thirty (30) days of the filing of this decision and order.
July 7, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. A motion is "made when a notice of motion . . . is served." Civil Practice Law and Rules §2211.