The following papers were read and considered on claimant's motion for
permission to file a late claim: Notice of Motion, dated May 9 and filed May
12, 2000, with annexed Proposed Claim and Discovery Requests; Affirmation in
Opposition of Earl F. Gialanella, Esq., AAG, dated June 5 and filed June 7,
2000, with annexed Exhibits A-C; and Affirmation in Opposition of Vincent
Collins, pro se, dated June 7 and filed June 14, 2000, with annexed
Vincent Collins ("claimant") seeks the Court's permission to file a late claim
pursuant to section 10 (6) of the Court of Claims Act. His proposed claim
(annexed to the Notice of Motion) alleges that on September 10, 1999, he was
issued a parole revocation, apparently based on his conviction in a Westchester
County Court for harassment of an employee of the Department of Correctional
Services at its Sing Sing Correctional Facility.
Claimant allegedly "appealed for the wrong parole dates," (Notice of Motion,
dated May 9 and filed May 12, 2000, annexed Proposed Claim, ¶ 4) but
received no response and so "inquired on September 14 and November 17, 1999 "
(id., ¶ 5). In December 1999, claimant filed a petition for habeas
corpus. The alleged wrong for which he seeks compensation is stated as follows:
"As a result of this lack of response, claimant was forced to seek psychiatric
counseling from the facility mental health unit" (id., ¶ 8).
In its response in opposition to the motion, the State of New York ("defendant"
or "the State") provides copies of claimant's sentence computations (Affirmation
in Opposition of Earl F. Gialanella, Esq., AAG, dated June 5 and filed June 7,
2000 ["Gialanella Aff."], Exhs. A and C), showing that his original parole
eligibility date of August 1998 was extended to October 2000 because of the
sentence imposed in June 1999 by the Westchester County Court (id., Exh.
B). Claimant responds by asserting that the State's submission "does not have
anything to do with the appeal to [the] Albany Parole Bureau dated September 10,
1999" and adds that "[t]he claim is based on a lack of response" (Affirmation in
Opposition of Vincent Collins, pro se, dated June 7 and filed June 14,
2000, ¶¶ 3, 5).
In determining a motion for permission to file a late claim, the Court must
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 of New York 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 claimant has another available remedy. The Court
in the exercise of its discretion balances these factors, and, as a general
rule, the presence or absence of any one factor is not dispositive (Bay
Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's
and Firemen's Retirement Sys., 55 NY2d 979).
There is one exception to this general rule. To satisfy the fourth factor
(apparent merit), a claimant need only establish that the proposed claim is not
patently groundless, frivolous, or legally defective and that there is
reasonable cause to believe that a valid cause of action exists (Matter of
Santana v New York State Thruway Auth., 92 Misc 2d 1). Therefore, it would
prove meaningless and futile for the Court to grant a motion to file a late
claim falling short of this threshold even if the other factors in Court of
Claims Act § 10 (6) favored granting the motion (Savino v State of New
York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729).
Here, claimant has provided no information or argument relating to any
of the six factors, and the Court is unable to glean a potentially viable
cause of action against the State from the meager allegations of the proposed
claim. Claimant alleges that a lack of response (apparently from the New York
State Parole Board) to an appeal and/or inquiries (apparently written, but not
included with the proposed claim or described in any detail) that he made in
September and November 1999 have caused him to suffer mental distress and
required him to seek psychiatric or psychological treatment. However, public
policy prohibits an action against the State for intentional infliction of
emotional distress (Brown v State of New York, 125 AD2d 750 appeal
dismissed 70 NY2d 747; Wheeler v State of New York, 104 AD2d 496;
DeLesline v State of New York, 91 AD2d 785, lv denied 58 NY2d
610), and any liability on the part of the State for the negligent infliction of
emotional distress is limited to those extremely rare instances where the
emotional injury is a direct, rather than a consequential, result of the
negligence (Kennedy v McKesson Co., 58 NY2d 500, 506) and a high
likelihood exists that the claims are genuine rather than spurious or
(Rivera v Wyckoff Hgts. Hosp.
, 184 AD2d 558, 560 [hospital falsely
informs parents that their infant is alive]; see also
, Lando v State
of New York
, 39 NY2d 803 [hospital negligently failed to locate a deceased
patient's body for 11 days]; Johnson v State of New York
, 37 NY2d 378
[plaintiff falsely informed that her mother had died]).
The proposed claim does not meet these criteria.
Based on the foregoing, the Court finds that the statutory factors do not favor
granting claimant's motion, and, in any event, his proposed claim lacks apparent
merit. The Court therefore denies claimant's motion for permission to file a