New York State Court of Claims

New York State Court of Claims

WHITE v. THE STATE OF NEW YORK, #2000-004-523, Claim No. None, Motion No. M-61762


Movant's motion for permission to late file, denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
July 31, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Movant seeks permission to late file pursuant to Court of Claims Act § 10 (6).

The following papers were considered by the Court:

Proposed Claim 1

"Attachment Sheet's" [sic] of Willis L. White, sworn to
September 21, 1999 2

Notice of Motion, filed October 28, 1999 3

Affidavit of Willis L. White, in support of motion,
sworn to May 3, 2000 4

Letter from James E. Shoemaker, AAG, to the Court, dated June 19, 2000 5

There is a question concerning whether the motion was served on the Attorney General. There are two copies of the motion papers contained in the Court's file and only one of the copies includes an Affidavit of Service. To add to the mystery, the Court received a letter from State's counsel which recites in pertinent part: "Please be advised, the defendant State of New York will be unable to respond to the motion since we have as of this date received no motion papers from claimant." (Paper No. 5).

For purposes of the motion, the Court will assume that proper service was made, because the Court will deny permission for the Movant to late file, for the following reasons.

The Proposed Claim[1] recites in pertinent part:
  1. This Claim is for negligence of the State for allowing inmate's Gary Bailey Jr. assault me.
  2. On the 9-11 day of Sept. 1999 at ___ P.M...Gary Bailey Jr....assaulted & throwing feces on me. The Plaintiff here in by this man Bailey throw feces from his cell into my cell the other man spitted in my face.

(Paper No. 1)

The obviously skeletal Proposed Claim is supplemented by "Attachment Sheet's" [sic] which recite in pertinent part:
On the above date & time [September 9 - 11,1999] this incident with a inmate spittin' & throwin' feces on another prisoner is not right. The first incident start about receive hot water also this is commissary night at the start this porter stated that he will give out the hot water later. When callin' this Porter to my cell to request about the water & I asked his "that he is a man to his words" he stated that the front section do not know how to talk to someone so no he is not givin' out any more water. Than he call me a (rat) in we started to shout at each other than he spittin' on me. Then this inmate next door in three cell throwed this feces on me which hit me on the side of the face. This is the 9th of Sept. 1999. So Friday mornin' this porter is moved to another Company somewhere.

Then on the 11th of Sept. 1999. Two (2) days later the inmate in three (3) cell on the second shift throw feces again in my cell which I'm layin' in bed when I look up at my door I see a hand with a cup, in feces comin' at me which hit me in the face, mouth in side of the head. The same night I see the nurse talk with her & I talked with this Sergeant which ask me will I sign a slip for P.C. Unit I told him yes that I would in I do not want to go there. Than they sayed that they wanted to take picture's which no picture's takin at any time. But they has me stay in this cell for about 45 to 60 minute with feces or (shit) an my cell which were cruel & unusual punishment & they their no rule or policy state that a inmate shall live like this were a serious problem but i did not receive any relief behind this incident now I sign up for sick call to see a Doctor's in receive a few tests HIV because it got in my mouth. I do not no if these two (2) inmate's have a virus or not. Its been six (6) days & no Doctor's have I bein' scheduled to see. This is also cruel & unusual punishment refusin to see a physican or professional assistance help here but I'm bein' refused. Then I been tryin' to receive the followin' name behind this incident but I'm bein' refused these reports as well. They are follows: Second (2) Shift Officer's, Sergeant, nurse, & and the inmates name's so I ask the Court to get these names because I been askin' the people here but no good fair on this end.

(Paper No. 2)

Section 10 (6) empowers the Court to grant permission to late file a claim when a potential Movant has failed to comply with the filing and service requirements.[2]

Section 10 (6) sets forth six factors that this Court must consider:
In determining whether to permit the filing of a claim pursuant to this subdivision, the court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.

(Court of Claims Act § 10 [6]).

No one factor standing alone necessarily controls. (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981; cf. Marcus v State of New York, 172 AD2d 724, 725). The Court must look at each factor and then determine whether, on balance, they weigh in favor of allowing Movant to file a late claim against the State.

While the Court has considered all of the statutory factors, only the factor of merit will be discussed, because it controls. In order for a claim to have an appearance of merit, the Movant must establish that the claim is not patently groundless, frivolous or legally defective, and the Court must find, upon consideration of the entire record, including the proposed claim, that there is reasonable cause to believe a valid cause of action exists (Rosenhack v State of New York, 112 Misc 2d 967; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

As can be seen from the Proposed Claim and the "Attachment Sheet's" (see supra pp 2-3), there is no appearance of merit.[3] Movant has not shown how the State breached any duty owed to the Movant. Since it would be futile to grant Movant's motion to file a late Claim where there is no appearance of merit (Rosenhack v State of New York, supra at 969; Jolley v State of New York, 106 Misc 2d 550), the Court must deny the motion.

In light of the foregoing, it is

ORDERED that Motion No. M-61762 is DENIED.

July 31, 2000
Binghamton, New York

Judge of the Court of Claims

  1. The Proposed Claim (Paper No. 1) and the "Attachment Sheet's" [sic] (Paper No. 2)contain numerous grammar and spelling errors which the Court in its discretion has elected not to "sic". However, in the interest of clarity, the Court has corrected improper capitalization.
  2. Section 10(6) of the Court of Claims Act states in pertinent part:
A claimant who fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing or serving upon the attorney general the claim or notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules. . . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application....
  1. With regard to the feces/HIV connection, without expert input on the subject, the Court cannot conclude that the Proposed Claim has an appearance of merit. In any event, if Movant's concern about a need for HIV testing has any validity, it should be addressed in a CPLR Article 78 proceeding.