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.