Claimant has made an application for an order granting permission to treat a
notice of intention as a claim pursuant to Court of Claims Act § 10(8)(a)
or, alternatively, for permission to late file a claim pursuant to Court of
Claims Act § 10(6).
On April 8, 1997, at approximately 2:00 a.m., claimant, an inmate at
Adirondack Correctional Facility, Essex County, left his bunk to go to the
bathroom. As he returned to his bunk, he was stopped and questioned by
Correction Officer Michael Roberts. Claimant avers that Roberts ordered him
into the officers' bathroom and that the officer started touching claimant.
Roberts purportedly stated, "You're a fag, you like dick" (Claimant's Affidavit,
par. 9). According to claimant, Roberts then pushed him down on the toilet and
said that if he "didn't perform oral sex on him, he would make [claimant's] life
miserable at Adirondack, or bury [him] in Southport Correctional Facility"
(Claimant's Affidavit, par. 9).
Claimant relates that Roberts forced him to perform oral sex and that Roberts
ejaculated into claimant's mouth. Roberts then purportedly told claimant that
if he mentioned the incident to anyone he would kill him. Claimant states when
he returned to his bunk he spit Roberts' bodily fluid into an empty vitamin
bottle, wrapped the bottle in a rubber glove and secreted it into his body. The
following morning, he reported the incident. He was examined in the facility
infirmary, taken to see the Superintendent and then interviewed by personnel
from the office of the Inspector General.
On April 8, 1997,
claimant was transferred
from Adirondack to Clinton Correctional Facility (hereinafter Clinton). He
claims he was held in his cell at Clinton for 24 hours per day until April 14,
1997, when he was transferred to the facility's special housing unit and held in
his cell 23 hours per day. Claimant asserts that, while at Clinton, he was
assaulted by a correction officer, threatened by other officers and falsely
charged with misbehavior.
Correction Officer Michael Roberts was indicted in Essex County, under
indictment number 98-009, for the following: (1) sexual abuse in the first
degree, a class D felony; (2) sodomy in the third degree, a class E felony; (3)
sexual misconduct, a class A misdemeanor; (4) official misconduct, a class A
misdemeanor; and (5) sexual abuse in the third degree, a class B misdemeanor.
Roberts ostensibly plead guilty to the second and fourth counts and received a
sentence of incarceration of one to three years.
On May 8, 1997, claimant prepared a notice of intention and mailed it to the
Attorney General by certified mail, return receipt requested. The properly and
timely served notice of intention extended the time for filing and serving a
claim to two years from the date of accrual (Court of Claims Act § 10).
Claimant did not serve his claim upon the Attorney General until April 12, 1999.
The claim was therefore four days late as to the events that had occurred on
April 8, 1997 and defendant asserted with particularity a time-related
jurisdictional defense in its answer. Claimant now seeks permission to either
treat the notice of intention as a claim (Court of Claims Act § 10[a])
or, alternatively, to late file a claim (Court of Claims Act §
A threshold showing that must be made for the relief afforded by either
subdivision 6 or subdivision 8(a) of section 10 is that the motion was filed
before the expiration of the Statute of Limitations. Claimant is currently
advancing two theories of liability, one premised upon the alleged violation of
the State constitutional provision protecting against cruel and inhumane
treatment and a second theory premised upon negligence. The Statute of
Limitations for both theories of liability is three years (Brown v State of
New York, 250 AD2d 314; CPLR 214). The current application was filed
February 14, 2000 and is therefore timely because the earliest alleged accrual
occurred on April 8, 1997.
The aspect of the application that seeks to treat the notice of intention as a
claim must be denied. The court is constrained to conclude, for the reasons set
forth by Judge Collins in Konviser v State of New York (180 Misc 2d 174),
that the amendments to the Court of Claims Act effected by chapter 466 of the
Laws of 1995 impliedly repealed Court of Claims Act § 10(8)(a)
prospectively from August 2, 1995.
Next, the court will consider whether relief should be afforded to claimant
under the provisions of Court of Claims Act § 10(6). The factors weighed
by the court on an application to late file include: (1) whether the delay in
filing was excusable; (2) whether the State had notice of the essential facts
constituting the claim; (3) whether the State had an opportunity to investigate
the circumstances underlying the claim; (4) whether the claim appears
meritorious; (5) whether substantial prejudice resulted from the failure to
timely file and the failure to serve upon the Attorney General a timely claim or
notice of intention; and (6) whether any other remedy is available (Court of
Claims Act § 10). The court is afforded considerable discretion in
determining whether to permit the late filing of a claim (see, e.g., Matter
of Gavigan v State of New York, 176 AD2d 1117). The presence or absence of
any particular factor is not dispositive (Bay Terrace Coop. Section IV v New
York State Employees' Retirement System Policemen's & Firemen's Retirement
System, 55 NY2d 979).
Claimant offers as an excuse the failure of his prior attorney to pursue the
matter. Claimant retained counsel in December 1997. His attorney commenced an
action in the United States District Court for the Northern District of New
He failed, however, to file and serve a
timely claim in the Court of Claims. Unfortunately for claimant, attorney error
and law office failure are not accepted excuses (Brennan v State of New
, 36 AD2d 569; 500 Eighth Ave. Assoc. v State of New York
The factors of notice, opportunity to investigate and substantial prejudice
will be analyzed jointly. The evidence submitted establishes that defendant was
aware of the primary allegations within less than 24 hours. Defendant clearly
had an opportunity to investigate and, in fact, conducted an investigation.
Moreover, a timely notice of intention was served upon the Attorney General.
Claimant has established that defendant had notice and an opportunity to
investigate. The presence of such factors negates substantial prejudice. The
three factors of notice, opportunity to investigate and substantial prejudice
therefore all weigh in claimant's favor.
The next factor, meritorious claim, has been characterized as the most
important factor because it would be an exercise in futility to allow a
meritless claim to proceed (see, e.g., Prusack v State of New York, 117
AD2d 729; Matter of Professional Charter Servs. v State of New York, 166
Misc 2d 306, 308). The test applied to the merit factor is, however, liberal,
as the court considers simply whether the papers submitted establish reasonable
cause to believe a valid claim exists (Matter of Santana v New York State
Thruway Auth., 92 Misc 2d 1, 11).
Defendant argues that claimant has failed to establish a meritorious claim
because Roberts' criminal conduct was outside the scope of his employment as a
correction officer. Liability does not fall on an employer under the doctrine
of respondeat superior for acts outside the scope of the employee's employment
and which advance purposes of the employee, not the employer (Lucey v State
of New York, 73 AD2d 998; see, Clarke v City of New York, 178 AD2d
458). Moreover, purported prior acts of misconduct by a State employee may not
necessarily provide a foundation for a finding of liability (see, Doe v State
of New York, AD2d , 700 NYS2d 554).
Here, claimant contends, among other things, that defendant had actual or
constructive notice of Roberts' predisposition to abuse his power over inmates
because various complaints had purportedly been filed against him. Claimant
also premises aspects of his claim upon treatment to which he was allegedly
subjected following Roberts' abuse of him. Although the conduct of Roberts is
shocking, it is apparent from the case law that claimant will face obstacles in
attempting to connect Roberts' criminal conduct to culpable conduct attributable
to defendant. The court is nevertheless not inclined to conclude that, for
purpose of a late file motion, the proposed claim is meritless. Sufficient
factual allegations have been made to allow the court to find that claimant has
successfully achieved the low hurdle of establishing a meritorious claim for
purposes of an application for permission to late file a claim.
The final factor is whether claimant has any other available remedy. Claimant
is currently pursuing a claim in federal court and thus he does have other
After weighing and considering the factors set forth herein, the court, in the
exercise of its discretion, grants claimant permission to late file a claim
Although defendant has not cross-moved to dismiss Claim No.
it is apparent that such claim is
jurisdictionally defective as to some of the alleged acts. In order to avoid
confusion caused by two pending claims for the same incidents (one of which is
at least partially jurisdictionally defective), the court directs that the
pending claim (No. 100157) be dismissed when claimant files a new claim pursuant
to the permission granted herein.
ORDERED that claimant's motion is granted, in part, and he is directed
to serve his claim upon the Attorney General (either personally or by certified
mail, return receipt requested) and to file the claim with the Chief Clerk of
the Court of Claims within 30 days of service of a filed-stamped copy of this
order, such service and filing are to be in accordance with the Court of Claims
Act and the Uniform Rules for the Court of Claims; and it is further
ORDERED that Claim No. 100157 be dismissed when claimant files his new
claim pursuant to the permission granted herein.