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
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
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.