Opinion
# 2021-040-016 Claim No. NONE Motion No. M-96507
04-20-2021
MARIA POLANCO v. THE STATE OF NEW YORK
Maria Polanco, Pro Se LETITIA JAMES Attorney General of the State of New York By: Glenn C. King, Esq., AAG
Synopsis
Pro se Movant's Motion to serve and file a Claim late denied based upon lack of appearance of merit.
Case information
| UID: | 2021-040-016 |
| Claimant(s): | MARIA POLANCO |
| Claimant short name: | POLANCO |
| 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-96507 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Maria Polanco, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Glenn C. King, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | April 20, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the application of pro se Movant, Maria Polanco, to serve and file a Claim late pursuant to Court of Claims Act § 10(6) is denied.
In her proposed Claim attached to her Motion papers, Movant asserts that, on August 14, 2020 at approximately 8:00 p.m., she and about five friends, traveled to Bare Hill Correctional Facility (hereinafter, "Bare Hill") from New York City to visit her son, who is incarcerated at Bare Hill. She states that all of the visitors took time off from their respective jobs to make the journey. Movant further asserts that she rented a vehicle and rooms at a local motel. In addition, she went to a store to get food items for her son (Proposed Claim, ¶ 5).
Movant asserts that, on August 16, 2020, she and her friends arrived at Bare Hill at approximately 8:00 a.m. She states that she "brought the package of food stuffs to give to her son … after the family visit" (Proposed Claim, ¶ 6). She asserts that during the visitation processing procedure, a handheld wand was passed over the package and an alarm went off indicating the package contained drugs and the package was confiscated by correctional personnel as contraband and never returned to Movant (id., ¶¶ 6, 7).
The Court notes that in the proposed Claim ¶¶ 2, 4, and 6, Movant asserts that the incident occurred on August 16, 2020. However, in ¶ 10, she asserts it occurred on August 15, 2020. --------
Movant further asserts that, upon review and investigation by the Department of Corrections and Community Supervision (hereinafter, "DOCCS"), it was determined that the handheld wand "gave off a false positive for illegal drugs" (Proposed Claim, ¶ 7). As a result of the allegedly false warning that the package contained illegal drugs, Movant was not allowed to visit her son, the package was not returned to her, she lost a day's wages, and spent money renting a car and hotel rooms for her friends and gas for the rental car (id., ¶ 8).
The Court rejects Defendant's assertion that the Motion should be denied on the basis that Court of Claims Act § 10(6) relief is not available to Movant as it seeks recovery for lost personal property (Encarnacion v State of New York, 133 AD3d 1049, 1050 [3d Dept 2015], lv denied 26 NY3d 919 [2016]; Pristell v State of New York, 40 AD3d 1198, 1198-1199 [3d Dept 2007]). However, those cases held that 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 brought pursuant to Court of Claims Act § 10(9). Here, Movant is not an inmate and this action, if it had been timely filed, would be brought pursuant to Court of Claims Act § 10(3) (see Walker v State of New York, UID No. 2015-040-060 [Ct Cl, McCarthy, J., Nov. 24, 2015]). Thus, the Court finds that this Motion is properly brought pursuant to Court of Claims Act § 10(6).
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 negligence (CPLR § 214[5], a three-year Statute of Limitations), it appears that the proposed Claim is timely made as Movant asserts that the negligence occurred on August 16, 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).
Attached to the proposed Claim, as Exhibits A and B, are two letters Movant received from DOCCS, which contradict some of the facts Movant has stated in her proposed Claim. The first letter addressed to Movant is from the Bare Hill Superintendent and is dated August 19, 2020. In the letter, the Superintendent states in pertinent part:
This is to inform you that pursuant to Title 7 NYCRR Part 201, Visitation, your visiting privileges at all New York State [DOCCS] facilities are hereby indefinitely suspended. During this time, you will not be permitted to participate in non-contact visitation if available at the facility where the inmate is residing.
Your visiting privileges are suspended for the following reasons: received information of possible introduction of contraband in a package from a visit, while processing the package a book was found soaked in an unknown substance, k-9 hit on the book and it was then tested and found positive for codeine. Copies of the documentation supporting this determination are enclosed herewith.
Due to the nature of this conduct, allowing you continued visitation would pose a serious risk to the safety and security and good order of any correctional facility. Therefore, I am indefinitely suspending your visitation privileges pursuant to DOCCS Directive 4403, Appendix A.
(Ex. A attached to proposed Claim.)
The second letter, dated September 16, 2020, is from the Bare Hill Acting Superintendent and states in pertinent part:
This is in response to your request for reconsideration of the suspension of your visiting privileges. Upon review of the facts and circumstances resulting in the suspension of your visiting privileges, including the presence or absence of special circumstances, the remaining time to be served on Inmate WELLINGTON GARCIA sentence, the past history of violations and other good cause factors in accordance with Title 7 NYCRR § 206.1, I hereby modify your sanction.
(Ex. B attached to proposed Claim.)
It appears that the package that Movant brought to Bare Hill contained not only food, but a book that was soaked in a substance that tested positive for codeine, a narcotic and controlled substance. Further, while the second letter reversed the decision imposing the sanction of an indefinite suspension of Movant's visiting privileges, it does NOT state that the original finding that drugs were contained in the package was incorrect, as Movant asserts in her proposed Claim.
7 NYCRR § 200.3 deals with unauthorized items/contraband and provides as follows:
(a) Contraband is defined as:
(1) Any article or thing the possession of which would constitute an offense under any law applicable to the public;
(2) Any article or thing which is readily capable of being used to cause death or serious physical injury, including but not limited to a hand gun, shoulder gun, cartridge, knife, explosive, or dangerous drug (including marijuana);
(3) Any article or thing that is introduced into a correctional facility under circumstances showing an intent to transfer same to an inmate without the permission of the superintendent or his designee …
(b) Upon the discovery of contraband as defined in subdivision (a) paragraphs (1) and (2) above, the contraband shall be confiscated and law enforcement officials shall be contacted.
(c) Prohibited Items. Certain items are prohibited inside a State correctional facility …
(2) A visitor shall declare any prohibited item that is not specifically authorized to be possessed in a state correctional facility, but is otherwise legally possessed (e.g., medications) ….
7 NYCRR § 201.3 sets forth visitation guidelines. As pertinent here, subsection (e) provides:
201.3 Guidelines
(e) Prior to a visit, a visitor may leave a package for an inmate, containing authorized items only, which will be inspected prior to delivery to the inmate. An attempt to introduce contraband through a package may result in the denial or termination of a visit and the term of suspension or indefinite suspension of future visits.
Based upon the entire record, including the proposed Claim, and exhibits attached, the Court finds that the facts as set forth in the proposed Claim are not accurate. The Court finds that Movant's package for her son contained an item which was covered in a liquid that contained the narcotic medication codeine, which would fall within the items prohibited by 7 NYCRR §200.3 (a)(2) and (c)(2). The Court further finds that Movant's visitation privileges were restored, not because the package for her son was incorrectly deemed to contain drugs, but based upon a "review of the facts and circumstances … including the presence or absence of special circumstances, the remaining time to be served [on her son's] sentence, the past history of violations and other good cause factors." Therefore, the Court finds that the proposed cause of action for failure to return the package to her lacks the appearance of merit.
It is well settled that participation in visitation programs is a privilege, not a right, and the refusal to grant visitation does not give rise to a cognizable claim against the State. (Matter of Doe v Coughlin, 71 NY2d 48 [1987], rearg denied 70 NY2d 1002 [1988], cert denied 488 US 879 [1988]; Rodriguez v Smith-Roberts, 188 AD3d 1539 [3d Dept 20920]; Gordon v Morris, 144 AD3d 1338 [3d Dept 2016]; lv denied 28 NY3d 914 [2017]; Rivera v State of New York, 169 AD2d 885 [3d Dept 1981], lv denied 77 NY2d 807 [1991]; Jordan v State of New York, UID No. 2005-019-593 [Ct Cl, Lebous, J., Dec. 23, 2005]). As such, Movant has failed to state a cause of action that has the appearance of merit based upon improperly withholding visitation and associated costs.
As both causes of action lack the appearance of merit, the Motion to serve and file a Claim late is denied.
April 20, 2021
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 Section 10(6) of the Court of Claims Act: Papers Numbered Motion, Proposed Claim, & Exhibits Attached 1 Affirmation in Opposition 2