New York State Court of Claims

New York State Court of Claims


Case information

UID: 2010-032-004
Claimant short name: DEVEAUX
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): N/A
Motion number(s): M-77298
Cross-motion number(s):
Claimant's attorney: Bernard DeVeaux, Pro Se
Defendant's attorney: Hon. Andrew M. Cuomo, NYS Attorney General
By: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:
Signature date: March 8, 2010
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Bernard DeVeaux, hereinafter "movant," moves this Court for an order pursuant to Court of Claims Act 10 (6), allowing claimant to file a late claim. Defendant opposes the motion on the ground that the Court lacks jurisdiction.

The proposed claim alleges that the Department of Correctional Services (DOCS) miscalculated movant's maximum sentence date by not taking into consideration the number of leap years that occurred during his 30 year period of incarceration, which resulted in movant being incarcerated for three extra days. Specifically, he alleges that he should have been released on April 13, 2008, rather than on April 16, 2008, and that his wrongful confinement between said dates allowed the Attorney General to timely file a Mental Hygiene Law Article 10 petition against him.

The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act 10[6]). These factors 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 State was substantially prejudiced; (5) whether the claimant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act

10[6]). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the claimant's application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]). The first issue for determination upon a motion to file a late claim is whether the application is timely. Pursuant to Court of Claims Act

10 (6), a motion to file a late claim must be made "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." The claim herein alleges wrongful confinement, a species of the tort of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [1986]), which carries a one year Statute of Limitations (CPLR 215). Accordingly, the claim would be timely in accordance with Article two of the CPLR.

Since the Court has determined that the claim would be timely under the applicable Statute of Limitations, the Court must now consider the statutory factors set forth in Court of Claims Act 10(6).

The first factor is whether the delay in filing and serving the claim was excusable. The claimant alleges, as his reasons for not timely filing his claim, that he is pro se and was only recently made aware of the Statute of Limitations, that he does not have access to a law library, that the psychiatric center where he is detained refuses to copy legal documents for him, and that he thought he had to be released before filing any claim. A claimant's ignorance of the law is not an acceptable explanation for the failure to timely serve and file a claim (Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Plate v State of New York, 92 Misc 2d 1033 [1978]). Accordingly, this factor weighs against the granting of the claimant's motion.

The three factors of notice, opportunity to investigate and prejudice are all intertwined and may be considered together. According to defendant's Affirmation in Opposition, it received service of the pending motion on October 8, 2009, and had not been served, prior to that date, with either a notice of intention to file a claim or a claim, a fact not disputed by claimant. Although Defendant did not have notice and an opportunity to investigate, it has not alleged that it has been prejudiced by the late filing, a factor which weighs in favor of granting the claimant's motion.

It does not appear that claimant has any adequate alternative remedy available.

The final factor for the Court to consider is whether the claim appears to be meritorious. In order to establish a meritorious cause of action, the claimant need not demonstrate a likelihood that he will prevail on his claim; he need only show that the proposed claim is not patently groundless, frivolous, or legally defective (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]. In addition, the Court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists (id.).

In the present case, claimant alleges wrongful confinement. Accordingly, to establish his claim, he would need to prove that: "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 [1975], cert denied sub nom. Schanbarger v Kellogg, 423 US 929; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).

Although claimant alleges each of the aforesaid elements of wrongful confinement, the only argument he offers in support of his position that he was detained longer than he should have been is that DOCS failed to take into consideration the various leap years that occurred during his incarceration, and that if DOCS had included those additional days, it would have released claimant sooner. It is well settled, however, that the term "year" in a statute, contract, or any public or private instrument, means three hundred and sixty-five days, and that when there is a leap year, the added day and the day immediately preceding it are, for the purpose of such computation, to be counted as one day (General Construction Law 58).

Based on the foregoing, this Court finds that claimant has failed to offer anything to show that the time he served was anything other than that to which he was sentenced. Accordingly, the Court finds that the proposed claim lacks merit.

Upon balancing all of the factors in Court of Claims Act 10 (6), the Court denies claimant's motion for permission to file and serve a late claim (M-77298).

March 8, 2010

Albany, New York


Judge of the Court of Claims

Papers Considered:

1. Notice of Motion to File a Late Claim, dated October 1, 2009, and proposed Claim, sworn to by Bernard DeVeaux on October 1, 2009, and filed on October 8, 2009.

2. Affidavit of Michael C. Rizzo, AAG, in Opposition to Claimant's Motion to File a Late Claim, sworn to and filed on November 10, 2009.

3. Reply of Bernard DeVeaux, dated November 13, 2009, and filed on November 19, 2009.