Opinion
# 2019-053-505 Claim No. NONE Motion No. M-93275
01-17-2019
DAVID LYONS v. THE STATE OF NEW YORK
DAVID LYONS, Pro Se HON. LETITIA JAMES New York State Attorney General BY: Shadi Masri, Esq. Assistant Attorney General
Synopsis
Pro se inmate's motion for permission to late file a claim pursuant to Court of Claims Act 10 (6) is denied as he seeks to file a loss of personal property claim for which late claim relief may not be brought under Court of Claims Act 10 (9).
Case information
| UID: | 2019-053-505 |
| Claimant(s): | DAVID LYONS |
| Claimant short name: | LYONS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-93275 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | DAVID LYONS, Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Shadi Masri, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 17, 2019 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant David Lyons, an inmate proceeding pro se, moves this Court for permission to late file a claim pursuant to Court of Claims Act § 10 (6). Defendant opposes the motion.
Movant attaches to his motion a proposed notice of intention to file a claim. There is no procedure within the Court of Claims Act by which to seek permission to late file and serve a notice of intention to file a claim (Holmes v State of N.Y., Roswell Park Cancer Inst. Corp., 5 Misc3d 446 [Ct Cl 2004]). The Court will treat the attached notice of intention as the claim proposed to be filed and served which must accompany a motion to late file and serve a claim (Court of Claims Act § 10 [6]).
Movant alleges in his proposed notice of intention (henceforth referred to as the proposed claim) that on April 25, 2018, his SONY Walkman AM/FM cassette player was packed up by a correction officer when he was placed in the Special Housing Unit (SHU) and that his Walkman was missing when he was released from SHU. A claim by an inmate to recover damages for loss of personal property is governed by Court of Claims Act § 10 (9). Such a claim must be served and filed within one hundred twenty (120) days after the inmate has exhausted his two-tier administrative remedy. According to the proposed claim, movant's administrative remedy was denied on July 19, 2018. Accepting July 19, 2018 as the date upon which movant exhausted his administrative remedy, then movant's one hundred twenty (120) days within which to file and serve a claim for loss of personal property has expired. A motion for late claim relief pursuant to Court of Claims Act § 10 (6) does not extend to personal property claims under Court of Claims Act § 10 (9) (Scott v State of New York, 137 AD3d 1434 [3d Dept 2016]; Blanche v State of New York, 17 AD3d 1069 [4th Dept 2005]). Accordingly, this Court does not have the authority to consider movant's application and his motion to late file a loss of personal property claim must be denied (Stewart v The State of New York, UID No. 2013-040-059 [Ct Cl, McCarthy, J., Aug. 22, 2013]).
In addition to the proposed claim, movant submits a document entitled motion for permission to file a late claim. In paragraph 2 of this document, movant alleges that the delay in filing a claim was excusable as he is not an attorney and had no access to legal counsel or to a law library. In paragraph 3 of this document, movant alleges that the State had notice of the essential facts constituting the claim as medical personnel were aware of his illness while he was in the prison dispensary and that the State had an opportunity to investigate the cause of his illness by questioning the guards who were present at the time of injury. Whether the delay in filing a claim was excusable, whether the defendant had notice of the claim and whether the defendant had the opportunity to investigate the claim are three of the several factors which must be considered on a proper motion for late claim relief under Court of Claims Act § 10 (6). These allegations, however, seem to imply that movant is attempting to seek permission to late file a medical negligence or malpractice claim, and not a bailment claim for the loss of his Walkman as alleged in the proposed claim.
If movant is attempting to seek permission to late file a medical negligence or malpractice claim against the State, then there are several problems with his motion. First, movant has failed to include a proposed claim alleging a viable medical negligence or malpractice claim. The failure to include a proposed claim is reason enough to deny a motion for late claim relief (Davis v State of New York, 28 AD2d 609 [3d Dept 1967]). In addition, movant's excuse for failing to timely file a claim is insufficient as neither ignorance of the law nor incarceration constitute acceptable excuses (Matter of Robinson, 35 AD3d 948 [3d Dept 2006]). Moreover, without a date of any alleged malpractice or any facts to show how the State departed from acceptable standards of medical care, the court cannot conclude that the State had notice of the essential facts and an opportunity to investigate.
The most important factor to consider is merit as it would be futile to permit the filing of a meritless claim (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). It is movant's burden to show that a proposed claim is not patently groundless, frivolous or legally defective and that there is reason to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc2d 1 [Ct Cl, 1977]). Movant fails, however, to attach any medical records or to provide any expert proof to show that a medical negligence or malpractice claim has merit (Matter of Perez v State of New York, 293 AD2d 918 [3d Dept 2002]).
Insofar as movant's motion can be construed as seeking permission to late file a loss of personal property claim it is denied as late claim relief under Court of Claims Act § 10 (6) does not extend to claims brought under Court of Claims Act § 10 (9). Insofar as movant's motion can be construed as seeking permission to late file a medical negligence or malpractice claim, it is also denied as movant failed to include a proposed medical negligence or malpractice claim and as the factors to be considered under Court of Claims Act § 10 (6), all weigh against the granting of permission to late file this claim.
Accordingly, movant's motion no. M-93275 is denied.
January 17, 2019
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and unsworn statement of David Lyons dated December 1, 2018; and 2. Opposing affirmation of Assistant Attorney General Shadi Masri dated January 8, 2019, with annexed Exhibit A.