New York State Court of Claims

New York State Court of Claims

PHELPS v. New York, #2000-010-018, Claim No. None, Motion No. M-61535


Synopsis


Late claim application

Case Information

UID:
2000-010-018
Claimant(s):
DARRYL PHELPS
Claimant short name:
PHELPS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-61535
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
DARRYL PHELPSPro se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 31, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-7 were read and considered by the Court on claimant's late claim application:
Motion for Permission to File a Late Claim, "Notice of Intention to File Late Claim," Proposed Claim.........................................................................................................1

Second Claim for Damages.......................................................................................2

"Claim (Third)" and Exhibits...................................................................................3

Attorney's Opposing Affirmation.............................................................................4

Reply..........................................................................................................................5

Supplemental Reply Dated May 16, 2000.................................................................6

Supplemental Reply Dated May 17, 2000.................................................................7

Claimant, a pro se inmate, seeks leave to serve and file a late claim. The proposed claim alleges that on September 1, 1999, during claimant's incarceration at Sing Sing Correctional Facility, he was assaulted by four correction officers and sustained injuries which caused, inter alia, internal bleeding.

The determination of a motion for leave to file a late claim requires the Court to weigh, among other relevant considerations, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (1) whether the delay in filing the claim 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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy.

Claimant has failed to establish a reasonable excuse for the delay in filing a claim (see, Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654 [ignorance of the law is not a valid excuse]; Goldstein v State of New York, 75 AD21d 613 [alleged incapacity due to hospitalization or convalescing is not a valid excuse without physicians affidavit or hospital records]; see also, Malek v State of New York, 92 AD2d 659 [despite physician's letter stating that claimant was disabled for 90 days after accident, the Court held that there was no reasonable excuse because no explanation was offered as to why claimant could not have contacted an attorney by telephone]). The presence or absence of any one factor, however, is not determinative (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979).

The most significant factor is the appearance of merit of the proposed claim. Here, claimant submits an Unusual Incident Report which states:

ON 9-1-99 AT APPROXIMATELY 9:05 AM, INMATE PHELPS, D. 98A3370 WAS BEING ADMITTED TO HBC. C.O. J. WHITE WAS ATTEMPTING TO PERFORM A STRIP FRISK. HAND RESTRAINTS WERE REMOVED BY C.O. J. WHITE. C.O. J. WHITE INSTRUCTED THE INMATE TO PLACE HIS HANDS ON THE WALL. C.O. J. SINGLETON WAS STANDING AT THE INMATES RIGHT SIDE. INMATE PHELPS TURNED HIS BODY STRIKING C.O.. J. SINGLTON [SIC] ON THE LEFT CHEEK BONE WITH HIS RIGHT ELBOW. C.O. J. SINGLETON STRUCK INMATE PHELPS WITH HIS RIGHT KNEE IN THE GROIN AREA AND TAKING HOLD OF THE INMATES UPPER BODY. C.O. J. WHITE GRABBED THE INMATE FROM BEHIND ALL THREE FALLING TO THE FLOOR WITH C.O. J. SINGLETON ON TOP OF THE INMATE. INMATE D. PHELPS CONTINUED TO VIOLENTLY STRUGGLE FLAILING HIS ARMS AND LEGS. C.O. F. CARRABALLO ON HEARING THE COMMOTION RESPONDED FROM THE O.I.C. OFFICE AND GAINED CONTROL OF THE INMATES HANDS AND PLACED THE INMATE IN MECHANICAL RESTRAINTS. C.O. T. MCDONOUGH RESPONDED AND PLACED MECHANICAL LEG RESTRAINTS ON THE INMATE. SGT. M. ALGIERE WAS THE ON SCENE SUPERVISOR AND WAS NOT INVOLVED IN THE INCIDENT.


The report further noted that claimant was "BLEEDING FROM MEATUS OF PENIS *** BLOOD IN URINE" (Claimant's Ex. To Claim [Third]). Correction Officer Singleton had a bruise to his left cheek and Correction Officer White complained of pain to his right hand. The two other correction officers did not report any injuries.

Defendant's conclusory statement that claimant's injuries resulted from "necessary use of force" and that the officers were "acting legally within the course of their duties" (Attorney's Affirmation, ¶ 11) does not detract from the claim's appearance of merit. Moreover, defendant's claims of prejudice and inability to investigate the claim is not convincing given claimant's submission, i.e.: a "Use of Force Report;" a Report of Inmate Injury; Inmate Misbehavior Report; Memoranda from the correction officers; and photocopies of Polaroids taken of claimant (see, Claimant's Exs.),

Accordingly, upon review of all the factors, this Court grants claimant's motion for leave to file and serve a claim in the same form and style as the proposed claim against the State of New York in compliance with the provisions of the Court of Claims Act, within 60 days of receipt of a filed copy of this Decision and Order.

It is noted that the Court's conclusion with regard to the appearance of merit is limited to this Decision and Order; a greater burden of proof rests upon claimant to prevail at trial.


May 31, 2000
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims