New York State Court of Claims

New York State Court of Claims


Motion for permission to serve and file a Claim late pursuant to CCA 10(6) denied as Court lacks jurisdiction over Albany County DA.

Case information

UID: 2021-040-044
Claimant(s): MARK SCHMIDT
Claimant short name: SCHMIDT
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-97026
Cross-motion number(s):
Claimant's attorney: Mark Schmidt, Pro Se
Defendant's attorney: For State of New York
Attorney General of the State of New York
By: Glenn C. King, Esq., AAG
For P. David Soares, Albany County District Attorney
By: John W. Liguori, Esq., Deputy County Attorney
Third-party defendant's attorney:
Signature date: September 7, 2021
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


For the reasons set forth below, the application of pro se Movant, Mark Schmidt, to serve and file a late claim pursuant to Court of Claims Act 10(6), is denied.

In his proposed Claim attached to his Motion papers, Movant asserts that, on December 2, 2017, Movant was arrested in the Town of Colonie, County of Albany, State of New York, when he was charged with two crimes and his motor vehicle was unlawfully seized and impounded at the Albany County Sheriff's Department vehicle storage facility (Proposed Claim, 2A). The proposed Claim further asserts, upon information and belief, the seizure of the vehicle was directed or approved by P. David Soares, Esq., in his capacity as the District Attorney for the County of Albany (id.).

Following Movant's conviction on the above-mentioned crimes, on or about April 5, 2019, through Assistant District Attorney Brian T. Cook, Jr., Albany County District Attorney P. David Soares, filed and served a Summons & Complaint seeking forfeiture of Movant's vehicle pursuant to CPLR Article 13-A (Proposed Claim, 2B).

Movant then retained counsel to represent him in the forfeiture action, following which, on or about January 21, 2020, Movant's attorney filed a cross-motion for summary judgment in Movant's favor, arguing that Movant's vehicle was not an instrumentality of a crime as defined under CPLR 1310(4), as its use did not contribute directly and materially to the conclusion of the crimes to which Movant pleaded guilty (Proposed Claim, 2C). On August 3, 2020, Acting Supreme Court Justice James H. Ferreira issued a Decision & Order granting Movant's cross-motion for summary judgment and dismissed the complaint in it entirety. On October 16, 2020, Movant's vehicle was returned to his friend, Heidi Andrade (id., 2D).

Movant asserts that the Claim accrued on August 3, 2020, when Acting Supreme Court Justice Ferreira issued the Decision & Order granting Movant's cross-motion for summary judgment (Proposed Claim, 4).

Pursuant to Court of Claims Act 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Since the proposed Claim asserts a cause of action for damages for the taking and detaining of Movant's property (CPLR 214 [3], a three-year Statute of Limitations), it appears that the proposed Claim is timely as the Claim allegedly accrued on August 3, 2020.

Next, in determining whether to grant a motion to file a late claim, Court of Claims Act 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

Perhaps the most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).

The Court of Claims is a court of limited jurisdiction with power to hear claims against the State and certain public authorities (NY Const Art VI; Court of Claims Act 9). District attorneys are county employees (Fisher v State of New York, 10 NY2d 60, 61 [1961]; Claude H. v County of Oneida, 214 AD2d 964, 966 [4th Dept 1995]; Whitmore v. State of New York, 55 AD2d 745,746 [3d Dept 1976], lv denied 42 NY2d 810 [1977]. This Court does not have jurisdiction over the Albany County District Attorney, or any individual employee thereof (Whitmore v State of New York [supra]; Pixley v State of New York, UID No. 2017-040-016 [Ct Cl, McCarthy, J., Feb. 6, 2017]; Lyons v State of New York, UID No. 2004-030-904 [Ct Cl, Scuccimarra, J., Feb. 18, 2004]; Webb v State of New York and The Administration for Children's Services (ACS), UID No. 2003-016-051 [Ct Cl, Marin, J., July 1, 2003]).

As the Court lacks jurisdiction over actions that involve the Albany County District Attorney, or employees of the Albany County District Attorney, the proposed Claim lacks the appearance of merit as there are no allegations of wrongdoing by any State employees. Accordingly, the Motion is denied.

September 7, 2021

Albany, New York


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):

Papers Numbered

Notice of Motion, Affidavit

& Exhibits attached 1

Defendant's Affirmation in Opposition 2

Affirmation of John W. Liguori, Esq.,

Deputy Albany County Attorney 3