New York State Court of Claims

New York State Court of Claims

BRISMAN v. THE STATE OF NEW YORK, #2000-007-044, Claim No. None, Motion No. M-61923


Claimant seeks permission to late file a claim alleging he was unlawfully held on restrictive confinement while incarcerated at Clinton Correctional Facility. Motion denied.

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):

John L. Bell
Claimant's attorney:
Richard Brisman, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General (Michael C. Rizzo, Esq., Assistant Attorney General, of Counsel)
Third-party defendant's attorney:

Signature date:
August 14, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has made an application for permission to late file a claim pursuant to Court of Claims Act § 10(6). The return date of the motion was August 2, 2000. The following papers were read and considered by the court:

Notice of Motion, Affidavit of Claimant,
Proposed Claim 1, 2, 3

Affidavit in Opposition of Michael C.
Rizzo, Esq. 4

Reply Affidavit of Claimant 5

Claimant alleges, inter alia, that he was unlawfully held on restrictive confinement while incarcerated at Clinton Correctional Facility. Claimant asserts that, in December 1998, he made a comment to Correction Officer G. P. Dew about the officer eating State food. Approximately nine months later, on September 18, 1999, Officer Dew filed a misbehavior report against claimant. On October 2, 1999, claimant reportedly received another misbehavior report prepared by Officer Dew. Claimant contends that the misbehavior reports were filed in retaliation for his comment to the officer in December 1998. The disciplinary dispositions of the two charges resulted in claimant receiving a total of 21 days in keeplock and 32 days of lost privileges. Claimant seeks permission to late file a claim.

The current motion was filed before the expiration of the Statute of Limitations for filing a like claim against a citizen (Court of Claims Act § 10[6]) and therefore consideration of the statutory factors is appropriate.

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 asserts as excuses for failing to timely file a claim his lack of knowledge of the law, the fact that he is incarcerated and the nature of his physical infirmities. Ignorance of the filing requirements is not an acceptable excuse (Matter of Galvin v State of New York, 176 AD2d 1185, lv denied 79 NY2d 753; Modern Transfer Co. v State of New York, 37 AD2d 756). Similarly, the fact that a person is incarcerated does not excuse compliance with the filing requirements (Plate v State of New York, 92 Misc 2d 1033, 1037). A claimant asserting physical infirmities as an excuse generally must submit medical evidence, such as hospital records or a physician's affidavit, substantiating the nature and extent of the physical problems (see, Cabral v State of New York, 149 AD2d 453; Goldstein v State of New York, 75 AD2d 613). Claimant failed to include any medical evidence in the papers presented in the current motion. Moreover, his physical problems are not related to the purported culpable conduct of defendant. The court concludes that claimant has failed to set forth an acceptable excuse for not filing in a timely fashion.

The factors of notice, opportunity to investigate and substantial prejudice will be considered together. Defendant's employees brought the disputed disciplinary charges and conducted hearings relative thereto. Defendant therefore undisputedly had notice and an opportunity to investigate. The presence of notice and an opportunity to investigate negate any contention of substantial prejudice in defending the claim. The factors of notice, opportunity to investigate and substantial prejudice weigh in claimant's favor.

The meritorious claim factor is particularly important because it would be an exercise in futility to allow a meritless claim to proceed (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). Actions of employees of the Department of Correctional Services taken in disciplinary proceedings against inmates that are consistent with the applicable rules and regulations are covered by absolute immunity (Arteaga v State of New York, 72 NY2d 212; Davis v State of New York, 262 AD2d 887, lv denied NY2d [Sept. 23, 1999]). Here, claimant contends that baseless disciplinary charges were brought against him. Claimant was afforded the opportunity to challenge the merits of the charges in hearings. There are no allegations that the hearings were not conducted in a timely fashion or that defendant otherwise violated germane procedural rules. The contentions contained in the papers presented to the court implicate matters covered by immunity and thus claimant has failed to establish a meritorious claim.

Although claimant can challenge the unfavorable hearing dispositions in a proceeding pursuant to CPLR article 78, he does not have any other apparent remedy for monetary damages than in the Court of Claims.

Upon weighing and considering the factors set forth herein, and noting particularly the failure to establish a meritorious claim and an acceptable excuse the court is not persuaded that it would be a prudent exercise of its discretion to permit the filing of a late claim (see, e.g., Matter of Thomas v State of New York, AD2d [May 4, 2000 Third Dept.]; Matter of E.K. v State of New York, 235 AD2d 540, lv denied 89 NY2d 815).

Accordingly, it is

ORDERED that claimant's motion is denied.

August 14, 2000
Plattsburgh, New York

Judge of the Court of Claims