New York State Court of Claims

New York State Court of Claims

PIERRE v. STATE OF NEW YORK, #2000-006-956, Claim No. NONE, Motion No. M-62648


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: Thomas G. Ramsay, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 30, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant's motion for an order of this court granting him permission to file a late claim pursuant to Court of Claims Act § 10(6). In deciding this motion the court has read and reviewed the following papers:
  1. Notice of motion October 26, 2000 and filed November 2, 2000.
  1. Claimant's affidavit sworn to October 26, 2000 in support of the motion.
  1. Proposed claim.
  1. Affirmation of Thomas G. Ramsay, Esq., Assistant Attorney General, dated November 22, 2000 and filed November 24, 2000, along with exhibits attached thereto, in opposition to the motion.

This claim arose on November 20, 1999 while claimant was an inmate at Attica Correctional Facility. Claimant alleges he was advised by Correction Officer McCarthy at approximately 7:00 a.m. that he was being transferred to another cell, and he should pack his personal property. Claimant states, at approximately 12:55 p.m. on November 20, 1999, he was ordered by Correction Officer McCarthy to move his personal property to the frisk area at the front of the gallery. According to claimant, when he did this, Correction Officer McCarthy, for no reason at all, started to punch claimant about the head and body. Claimant next states Correction Officer Fix joined Correction Officer McCarthy in punching him, and then both correction officers threw claimant to the floor, kicking him numerous times. Claimant next alleges Sergeant Kaufman came on the scene, and provided handcuffs to Correction Officer McCarthy, who then handcuffed claimant behind his back. Claimant states he was next taken to the cell block lobby, and was assaulted again by Correction Officers Kazmierczak and Leviles, who were alleged to have punched claimant in the face and head. Finally, claimant alleges Correction Officer Kazmierczak grabbed his head and slammed it against the wall many times. According to claimant, these alleged assaults were all unprovoked and, so to speak, came out of the blue.

Attached to defendant's opposition papers is Exhibit D, an inmate misbehavior report arising out of this incident of November 20, 1999, which provides a very different version of these events. The misbehavior report was completed by Correction Officer McCarthy on the same date of the incident. It states, that during a cell change of claimant, Correction Officer McCarthy engaged in a routine pat frisk of the claimant. According to Correction Officer McCarthy, during the pat frisk, claimant turned toward the left and swung towards Correction Officer McCarthy's face with a closed right fist. The misbehavior report further states Correction Officer McCarthy was then assisted by Correction Officer Fix in subduing claimant to the floor, but claimant continued to struggle. The misbehavior report continues that Sergeant Hendel arrived at the scene and placed mechanical restraints upon the claimant, as claimant continued to struggle with Correction Officers McCarthy and Fix. Claimant was then escorted to the Special Housing Unit. The misbehavior report gives the incident date as November 20, 1999 and the time at approximately 12:55 p.m.

The claimant has not offered any justifiable excuse for failing to file a timely claim or to serve a timely notice of intention to file claim. Notice, opportunity to investigate and substantial prejudice to the defendant if this claim is permitted to be filed, are not issues here, and have not been contested by the defendant. It is common knowledge that incidents, such as these, are well documented, and, contemporaneously with the incident investigated by correctional facility personal.

The most important factor in determining a late file motion is whether the claim has the appearance of merit. It would be of no benefit to permit a claim without the appearance of merit to be filed even if the other factors enumerated in Court of Claims Act § 10(6) supported the granting of the motion. Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729; Rosenhack v State of New York, 112 Misc 2d 967. It is also noteworthy that a late file motion is within the sound discretion of the court. Ledet v State of New York, 207 AD2d 965; Scarver v State of New York,. 233 AD2d 858. Furthermore, when there are facts before the court directly contradicting claimant's version of the events, as is the case here, it is incumbent upon the court to determine the credibility of the proposed claim in determining whether the claim has the appearance of merit.

Claimant has set forth in his proposed claim that he was brutally assaulted by four correction officers. He maintains this assault was completely unprovoked, and not a result of any actions on his part. If this incident occurred as claimant alleges, it would seem to the court claimant would have promptly and timely either filed and served his claim or served the Attorney General with a notice of intention to file claim. Yet, claimant waited until the last moment before filing this motion, alleging a proposed claim for an intentional tort.

On the other hand, defendant has submitted a copy of claimant's misbehavior report relating to this incident, which describes claimant as the instigator, and the necessary use of force by correction officers to subdue him. As previously stated, the inmate misbehavior report was completed the same day of the incident, November 20, 1999. In the court's view, a recitation of events made the same day of an incident while events are still fresh in the mind, would be more accurate and credible than a description of the incident made approximately one year later.

Based upon the foregoing the court has serious doubts as to the credibility of this claim, and consequently finds the claim does not have the appearance of merit. Accordingly, it is

ORDERED, that claimant's motion is denied.

November 30, 2000
Buffalo, New York

Judge of the Court of Claims