New York State Court of Claims

New York State Court of Claims

WAXTER v. THE STATE OF NEW YORK, #2000-007-002, Claim No. 100157, Motion No. M-61267


Claimant, an inmate who was sexually assaulted by a correction officer, was granted permission to late file a claim.

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:
Third-party defendant's attorney:

Signature date:
April 4, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


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,[1] 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[3]). 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[8][a]) or, alternatively, to late file a claim (Court of Claims Act § 10[6]).

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[6]). 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 York.[2] 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 York, 36 AD2d 569; 500 Eighth Ave. Assoc. v State of New York, 30 AD2d 1010).

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 apparent remedies.

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 against defendant.

Although defendant has not cross-moved to dismiss Claim No. 100157,[3] 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.

It is

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.

April 4, 2000
Plattsburgh, New York

Judge of the Court of Claims

The return date of the motion was March 15, 2000. The following papers were read and considered by the court:

Notice of Motion, Affirmation of Andrew

F. Plasse, Esq., "Affirmation"[4] of Claimant,
Annexed Exhibits 1, 2, 3, 4

Affirmation in Opposition of Michael W.
Friedman, Esq., Annexed Exhibits 5, 6

Reply Affirmation of Andrew F. Plasse, Esq. 7

Filed Papers: Claim, Answer 8, 9

There is some inconsistency in the papers before the court regarding the date claimant was transferred to Clinton.
Claimant's prior attorney apparently failed to consider the Eleventh Amendment to the United States Constitution when he drafted his complaint. The action in federal court was dismissed upon such ground with respect to the State of New York, the Department of Correctional Services, and Michael Roberts in his official capacities. Only the action against Michael Roberts personally remains active.
Claimant's current attorney, who was recently retained by claimant, acknowledges in his reply affirmation that he was not aware when he filed the instant motion that claimant had already filed a claim. The claim ostensibly had been prepared by claimant without the assistance of an attorney.
The document is sworn to and is actually an affidavit. An affirmation from an inmate would be improper (see, CPLR 2106). The document was referred to in the decision and order as an affidavit.