Pro se Movant's Motion for permission to file a late Claim pursuant to CCA § 10(6) denied as no proposed Claim accompanied motion papers as required.
|Claimant(s):||DARNELL BALLARD, #14A4774|
|Claimant short name:||BALLARD|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||Caption amended to reflect the State of New York as the proper defendant.|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Darnell Ballard, #14A4774, Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Michael T. Krenrich, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||July 10, 2017|
|See also (multicaptioned case)|
For the reasons set forth below, the application of pro se Movant, Darnell Ballard, to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is denied.
Court of Claims Act § 10(6) contains two preliminary requirements that must be satisfied in order for the Court to review the six enumerated factors set forth in the statute. The first is that the underlying Civil Practice Law and Rules (CPLR) statute of limitations for asserting a like claim against a citizen of New York State has not yet expired. Here, the Movant has asserted, in his Motion, that he was wrongfully confined to the Special Housing Unit at Bare Hill Correctional Facility for 30 days, beginning on April 5, 2016, when the hearing officer found that Movant had violated certain facility rules (Motion, ¶ 5[c]). A cause of action for wrongful confinement accrues when the restrictive confinement ends (Campos v State of New York, 139 AD3d 1276 [3d Dept 2016]; Matter of Kairis v State of New York, 113 AD3d 942 [3d Dept 2014]; Davis v State of New York, 89 AD3d 1287 [3d Dept 2011]; Santiago v City of Rochester, 19 AD3d 1061 [4th Dept 2005], lv denied 5 NY3d 710 ; Charnis v Shohet, 2 AD3d 663 [2d Dept 2003]). Here, it appears from Movant's papers that the restrictive confinement ended May 2, 2016 (Ex. A attached to Motion). Thus, it further appears that the underlying one-year statute of limitations for wrongful confinement had not yet expired at the time Movant filed his Motion on April 7, 2017 (CPLR § 215).
Movant further asserts that several items of his personal property were destroyed due to the State's negligence. While Claimant makes the conclusory statement that the cause of action accrued on January 17, 2017, he has not stated when the State destroyed his property or when he requested that the items he turned over to the State be returned. However, it appears that Movant exhausted his administrative remedies on November 1, 2016 when his administrative appeal was denied (Ex. C attached to Motion). Movant then had 120 days in which to bring a bailment action in the Court of Claims. Late claim relief pursuant to Court of Claims Act § 10(6) is not available to bailment claims accruing under Court of Claims Act § 10(9) (Scott v State of New York, 137 AD3d 1434, 1435 [3d Dept 2016]; Blanche v State of New York, 17 AD3d 1069 [4th Dept 2005]; Roberts v State of New York, 11 AD3d 1000 [4th Dept 2004]).
The second requirement is that "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application" (Court of Claims Act § 10). The failure to satisfy this prerequisite is a basis, in and of itself, for denial of the Motion (Davis v State of New York, 28 AD2d 609 [3d Dept 1967]; Bennett v State of New York, UID No. 2013-040-068 [Ct Cl, McCarthy, J., Oct. 3, 2013]; Nestel v State of New York, Claim No. None, Motion No. M-71607 [Ct Cl, Mignano, J., May 31, 2006]; Harrell v State of New York, UID No. 2003-005-511 [Ct Cl, Corbett, J., April 3, 2003]). Here, Movant has submitted a Motion for Permission to File a Late Claim with Exhibits attached, however, he has not submitted a proposed Claim. On this basis, the Motion for Permission to File a Late Claim is denied.
July 10, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Movant's motion to file a late Claim pursuant to Court of Claims Act § 10(6):
Motion for Permission to File a
Late Claim and Exhibits Attached 1
Affirmation in Opposition and Exhibit