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McCann v. State (N.Y.Ct.Cl. 11/14/2002)
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NEW YORK COURT OF CLAIMS
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Claim No. N/A
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2002 NY Slip Op 2275711/14/2002
hanism described above to position the new time limit for prisoner property loss claims so that it was encompassed by the language of section 10(6).
A court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit; and the failure of the Legislature to include a matter within the scope of an act may be construed as an indication that its exclusion was intended.
(McKinney's Cons Law of NY, Book 1, Statutes § 74). If this Court were to hold that, despite the express language of section 10 (6), the remedy it provides is also available to claims governed by section 10 (9), that ruling would, in effect, negate the Legislature's decision to place the new subdivision after, rather than before, section 10 (6). Such a ruling would also contradict the unambiguous language of the statute.
There is, of course, no explanation as to why the Legislature would remove late claim relief from one discreet class of actions over which this Court has jurisdiction: property loss claims only when they are brought by inmates of State prisons. It is not the province of the courts, however, to alter or read other meanings into a statute's express terms.
The courts in construing statutes should avoid judicial legislation; they do not sit in review of the discretion of the Legislature or determine the expediency, wisdom, or propriety of its actions on matters within its powers.
(McKinney's Cons Laws of NY, Book 1, Statutes § 73). The duty of the courts is "to discern and apply the will of the Legislature, not the court's own perception of what might be equitable" (Matter of Orens v Novello, __ NY2d __, 2002 SlipOp 8221, quoting Matter of Sutka v Conners, 73 NY2d 395, 403). As the Court of Appeals recently reiterated, where the Legislature has spoken clearly, any further change must come from (*9)the Legislature, not the courts (Riley v County of Broome, 95 NY2d 455, supra at 468).
Movant's motion is denied on the ground that the relief he seeks, permission to file an untimely claim for personal property loss by a State prison inmate, is not authorized by Court of Claims Act § 10 (6).
Exhibits and (*10)Memorandum of Law
The following papers were read on movant's motion for permission to file an untimely claim
1. Notice of Motion and Supporting Affidavit of Lyman McCann, pro se
2. Affirmation in Opposition of Reynolds E. Hahn, AAG, with annexed Exhibits and Memorandum of Law
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