New York State Court of Claims

New York State Court of Claims

NUNEZ v. STATE OF NEW YORK, #2000-005-568, Claim No. NONE, Motion No. M-60610


Claimant's motion for permission to file a late claim is 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):

Donald J. Corbett, Jr.
Claimant's attorney:
Jose NunezPro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Carla T. Rutigliano, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 24, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


On November 30, 1999, the following papers, numbered 1 to 3, were read on motion by Claimant for permission to file a late claim:

1, 2 Notice of Motion and Affidavit

3 Opposing Affirmation and Exhibits Annexed

Upon the foregoing papers, this motion is denied.

Claimant seeks permission to file a late claim pursuant to Court of Claims Act §10 (6) relating to an incident which allegedly occurred on or about March 26, 1999. This application is made within the time constraints of CPLR article 2 and thus I will review and address the six statutory factors of §10 (6). The proposed claim alleges the negligence of the Defendant because its officers and employees, to wit, a sergeant and some number of correction officers allegedly assaulted Claimant by hitting, punching and kicking him. Claimant alludes to an annexed medical report, but none was attached to his papers before me. In his affidavit in support however, Claimant characterizes his claim as one sounding in assault, and indeed a reading of his papers reflects a theory relying upon assault rather than negligence. Regardless, the motion is timely made and I will proceed.

The motion papers were finally filed some two months after the expiration of the 90-days period for serving and filing a claim or serving a notice of intention, and assert as an excuse the Claimant's placement in the Special Housing Unit (SHU) at Auburn Correctional Facility, and asserts his limited access to assistance other than from the Auburn Law Library, and in essence alleges ignorance of the law. This does not provide an acceptable excuse. Of course, one need not satisfy all six statutory factors in order to be successful (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979).

Claimant asserts that the Defendant was on notice of the essential facts underlying this claim because he had been found guilty at a Tier Three misbehavior hearing on April 9, 1999, for violation of several rules. Claimant appealed that decision to Albany DOCS, and he alleges that the decision was reversed. Claimant asserts that he filed a facility claim for back pay, which he allegedly received. Claimant asserts that he has no other available remedy for his injuries and suffering which he sustained because of the State's negligence. He also asserts that the instant claim is for assault by correction officers and the lacerations and bruises he allegedly received from the correction officers.

In opposition the Defendant disputes many of Claimant's assertions. Defendant avers that it was not on notice of the essentials facts, and that the Tier Three hearing upon which Claimant relies was reversed on a procedural deficiency, to wit, that the inmate had not been served with the disposition within 24 hours of completion of the hearing (Exhibit A to Defendant's Affirmation). The Unusual Incident Reports (Exhibit B) relate to the alleged throwing of items by Claimant and others at a correction officer, and nowhere discuss or allude to the use of any force on the Claimant. Accordingly, Defendant argues that it has not been put on notice of any of the essential facts underlying the proposed claim, to wit, that Claimant was assaulted. I agree. The documents do not support the notion of notice, nor accordingly, the timely opportunity to investigate. Nonetheless, the prejudice which Defendant asserts does not rise to the level of substantial prejudice, as articulated in §10 (6), and thus this factor favors the application. Similarly, Claimant is correct that he has no alternative remedy.

I thus now examine the appearance of meritoriousness of the proposed claim. A claim is said to have an appearance of merit when it is not patently groundless, frivolous or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1). The Defendant has provided copies of Claimant's medical records (Exhibit C), including specifically the entry for March 26, 1999, in which the notation is made that "Inmate denies any injuries, any medical problems ..."

The medical records reflect an "old abrasion on back of rt. knee, redness rt. flank." This report is not consistent with the proposed claim where Claimant asserted that he was punched in the rib area and the neck, that he was punched and kicked, that his bare feet were beaten with a stick and that he was hit on the bottom of his feet three times, as well as being kicked in the back. While this claim sounds in assault, rather than negligence as claimed, I cannot find that the proposed claim bears the appearance of meritoriousness. While acknowledging that it may be difficult for Claimant to supply affidavit(s) from witnesses to support his allegation that he was assaulted by correction officers, the absence of any contemporaneous medical complaints or evidence diminishes whatever reasonable cause to believe a valid cause of action exists. Thus Claimant only has his own bare assertions, without any other support.

After balancing all of the statutory factors, I decline to exercise my discretion on Claimant's behalf. The motion is denied.

October 24, 2000
Rochester, New York

Judge of the Court of Claims