Opinion
# 2019-054-002 Claim No. NONE Motion No. M-92772
01-10-2019
DA VON BATTEE v. THE STATE OF NEW YORK
DA VON BATTEE Pro Se HON. LETITIA JAMES Attorney General for the State of New York By: Christina Calabrese, Assistant Attorney General
Synopsis
Movant's application for leave to serve and file a late claim denied, insufficient funds in inmate account for postage.
Case information
| UID: | 2019-054-002 |
| Claimant(s): | DA VON BATTEE |
| Claimant short name: | BATTEE |
| 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-92772 |
| Cross-motion number(s): | |
| Judge: | WALTER RIVERA |
| Claimant's attorney: | DA VON BATTEE Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES Attorney General for the State of New York By: Christina Calabrese, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 10, 2019 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-4 were read and considered by the Court on movant's application for leave to serve and file a late claim:
Motion and Supporting Affidavit of Movant and Exhibits.......................................1
Affirmation in Opposition........................................................................................2
Supplemental Affirmation in Opposition and Exhibits............................................3
Movant's Reply......................................................................................................... 4
Movant seeks leave to serve and file a late claim alleging that on September 1, 2016, during his incarceration at Greene Correctional Facility (Greene), two pieces of his legal mail were not sent by certified mail, return receipt requested, as he had requested of the New York State Department of Corrections and Community Supervision (DOCCS) and that DOCCS' failure to comply with his request was contrary to DOCCS policies, procedures and directives and effectively denied movant access to the Courts.
The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: (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 claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).
The Court has considered all the relevant factors. In that regard, movant's purported excuse for the delay is essentially ignorance of the law, which is not a reasonable excuse (see Boranski v State of New York, 128 AD3d 628, 629). More significantly, the Court notes that while no single factor is determinative, it would be futile to grant a late claim application where the proposed claim is of questionable merit or would be subject to dismissal (see Barnes v State of New York, 158 AD3d 961 [3d Dept 2018]; Ortiz v State of New York, 78 AD3d 1314 [3d Dept 2010]; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]; Matter of Brown v State of New York, 6 AD3d 756 [3d Dept 2004] [late claim application denied where excuse was inadequate and proposed claim was of questionable merit]).
In the matter at bar, the undisputed facts are that movant requested that his legal mail be sent by certified mail, return receipt requested, and that both pieces of mail were returned to movant with a notation "INSUFFICIENT FUNDS and can only advance normal postage. Is that how you want them to go out?" (Movant's Ex. B). Movant did not respond to the inquiry (Movant's Reply, ¶ 9).
In opposition to the motion, defendant submits the affidavit of Marie Hammond, DOCCS Deputy Superintendent for Program Services at Greene (Defendant's Supplemental, Ex. D). According to Hammond, under the circumstances presented in this matter, DOCCS directive requires that movant respond to DOCCS inquiry with justification for special handling and an advance of funds to cover the costs of certified mail, return receipt requested, because movant did not have sufficient funds in his account to cover such costs. Thus, it appears that, contrary to movant's assertions, DOCCS did not act contrary to its own directives; rather movant failed to justify an advance of funds to cover the costs of his certified mail, return receipt requested, when requested to do so by DOCCS (Ex. D; see Johnson v State of New York, UID No. 2013-038-110 [Ct Cl, DeBow, J., Nov. 26, 2013]). In any event, whether DOCCS violated its own directive and thereby denied movant access to the Courts is not a cognizable cause of action over which the Court of Claims has jurisdiction; rather such claim may be addressed in federal court pursuant to 42 USC § 1983 or in the New York Supreme Court via a CPLR Article 78 proceeding (see Welch v State of New York, 286 AD2d 496 [2d Dept 2001]; Davis v Goord, 320 F3d 346 [2d Cir. 2003]; Vazquez v State of New York, UID No. 2013-044-557 [Ct Cl, Schaewe, J., Dec. 16, 2013]).
Accordingly, movant's late claim application is DENIED.
January 10, 2019
White Plains, New York
WALTER RIVERA
Judge of the Court of Claims