Claimant's motion for late claim relief denied. Claimant's time to file and serve the claim had not yet passed and the motion was therefore premature and, in any event, late claim relief is not available for an inmate lost property claim.
|Claimant short name:||CAMPBELL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||GLEN CAMPBELL, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 11, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, seeks permission pursuant to Court of Claims Act § 10 (6) to file a late claim seeking compensation for lost property. Defendant opposes the motion. In reply to defendant's opposition, claimant states that "there is no reason to file a late [c]laim" because he is still within the 120-day period from the exhaustion of his administrative remedies and he "wishes that the actual claim . . . be placed on [the] Calendar instead of a notice to file [a] late claim" (Campbell Response to District Attorney's [sic] Affirmation in Opposition to Motion to File Late Claim, ¶ 1).
On May 22, 2019, claimant filed an institutional property claim seeking compensation for several items of personal property that he alleged were missing when he was transferred to the Special Housing Unit (SHU) at Green Haven Correctional Facility (see Proposed Claim, unnumbered exhibits [Inmate Claim Form, Part 1]). The claim was disapproved on August 2, 2019 on the ground that "[a]ll property was packed that was in cell and brought to SHU" (id. [Inmate Claim Form, Part 3]). Claimant administratively appealed the disapproval, and his appeal was disapproved on November 25, 2019 on the ground that claimant "did not show proof of ownership and did not provide permits for permitted items" (id. [Inmate Claim Form, Parts 3-4]), giving claimant until March 24, 2020 to file and serve his lost property claim in the Court of Claims (see Court of Claims Act § 10 ).
Claimant is correct, therefore, that his late claim application is premature inasmuch as his time within which to file and serve the claim has not yet expired (see id. [inmate lost property claims must be filed and served within 120 days of exhaustion of administrative remedies]), and his motion will be denied as unnecessary. In any event, even if claimant's time to file and serve the claim had expired, permission to grant late claim relief pursuant to Court of Claims Act § 10 (6) is not available for claims for lost personal property brought pursuant to Court of Claims Act § 10 (9) (see Encarnacion v State of New York, 133 AD3d 1049, 1050 [3d Dept 2015], lv denied 26 NY3d 919  ["The provisions of Court of Claims Act § 10 (6) that vest the Court of Claims with discretionary authority to permit the filing of a late claim do not apply to inmate property claims"]; Roberts v State of New York, 11 AD3d 1000, 1001 [4th Dept 2004]), and his motion would be denied on that basis.
To the extent that claimant asks that this claim be placed on the Court's calendar "instead of a notice to file [a] late claim" because "[t]he papers sent under this motion [were] typed in the wrong format" (Campbell Response, ¶ 1), such relief cannot be granted. Claimant is required to file his claim with the Clerk of the Court of Claims with proof of service on the Attorney General and accompanied by a filing fee or an application for the waiver or reduction of the fee (see Court of Claims Act § 11; 22 NYCRR §§ 206.5, 206.5b [a], [c]).
Accordingly, it is
ORDERED, that claimant's motion number M-95139 is DENIED.
March 11, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Notice of Motion, undated;
2. Proposed Claim [styled "Affidavit in Support of Motion"], sworn to December 10, 2019, with unnumbered attachments;
3. Affirmation of Heather R. Rubinstein, AAG, in Opposition to Motion to Late File, dated February 25, 2020, with Exhibit A;
4. Response of Glen Campbell to District Attorney's [sic] Affirmation in Opposition to Motion to File Late Claim, dated February 28, 2020, with unnumbered attachments.