New York State Court of Claims

New York State Court of Claims

WHITE v.THE STATE OF NEW YORK, #2000-010-041, Claim No. None, Motion No. M-61763


Claimant's late claim application

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):

Terry Jane Ruderman
Claimant's attorney:
Defendant's attorney:
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 28, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-2 were read and considered by the Court on claimant's late claim application:
Notice of Motion, Claimant's Supporting Affidavit, Motion for Permission to File a Late Claim, Claimant's Supporting Affidavit, "Nature of Paper," "Claim," Notice of Intention to File Claim..........................................................................................1

Attorney's Affirmation in Opposition......................................................................2

Claimant fails to denominate a proposed claim; however he includes a "Nature of Paper" which states:
3. The time when & place where such claim arose & the nature of the same are as follows: second shift ER 1st floor hospital. Physical & mental abusement: inflict bodily harm, threats, argument, verbally marks, obscene language, harassment, discrimination's racial, racism. There must come a loftier respect for the sovereign human soul that seeks to know itself & the world about it; that seeks a freedom for expansion & self-development that will love & hate & labor in its own way, untrammeled alike by old & new. When all I were asking of this nurse were help. but refuse to give me the help I needed, the first step toward racial remark is to stop discrimination to the human race, the next step is to treat black men like human beings. but instead I receive cruel & unusual punishment is this the Doc Law to treat the inmate's.
4. The items of damage or injury sustained are as follows: inflict mind hurt, physical & mental abuse, obscene language, harassment, threat, verbally remarks & no respect from a another human being than I has just receive in the mail a letter from my sister telling me that my mother were losing her memory which I receive a letter from my sister Nov. 3, 1998 about my mother incident then the superintendent request me a telephone call to fine out she is doing. then I have to in the ER room in listing to this nurse with the words coming out her mouth as a assault about my family. believe me I m still suffering behind that incident so I will ask you damage or injury or the amount do you see I gave the price early in this.
5. The total sum claimed is $200.000.

and a "Claim" which states:
3. On the 16st day of Nov., 1998 at secnod shift p.m. at No. Sing Sing Corr. Facility 354 Hunter Street Ossining, N.Y. 10562 County of Westchester, New York, name of person who assaulted me Nurse Conklin, & Escort Officer Her physically verbally remarks at me, His hand right on the back of my neck. Harass me the time I came into the ER room with obscene language very verbally curseing talking to me. Then the nurse lady come out her mouth stating that my mother sure has kill me, That when my mother were having me she sure has cross her legs in kill me. At that time i turn to ask her what she sayed: but the Escort Officer put his hand around my neck in turn me to exit emergency room now out in the hallway the Escort Officer give me a direct order to put my hand in my pocket's I would has a assult on a employee or personal on the DOC. but I did not receive any write up on this date of the incident. but I file a grievance about this incident also the same nurse on Dec. 3, 1998.
6. Attached hereto as part of the Claim is a sketch of the place of the above-described incident. On this date i suffer bad stomach pain with diarrhea in were sent to ER to get relief but receive assault of obscene language, verbally marks, harassment and physical and mental harm. This nurse refuse to give me any thing to relief the pain of a stomach infection. This nurse refuse to do her job which is helping people's.
7. The particulars of claimant's damage as presently known are as follows: physical and mental-inflict bodily harm to the mind abuse the mind of human kind. $200,000.

The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, 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. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

The Court has considered the aforenoted six factors. Claimant's purported excuses for his failure to timely serve and file a claim are essentially ignorance of the law which is not a valid excuse (see, Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). Additionally, the State would be substantially prejudiced by a granting of claimant's application one year and eight months after the alleged incident which is the basis of the claim (see, Malek v State of New York, 92 AD2d 659).

Most significantly, claimant has failed to demonstrate the appearance of merit of the proposed claim (see, Qing Liu v City Univ. of N. Y., 262 AD2d 473; Matter of Gallagher v State of New York, 236 AD2d 400). Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see, Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Here, even giving this pro se claimant the most liberal reading of his papers, he has failed to establish the appearance of merit of any cognizable claim, i.e., defamation, discrimination, harassment, assault and battery, intentional or negligent infliction of emotional distress.

Accordingly, upon weighing all the factors, claimant's motion for leave to file a late claim is DENIED.

July 28, 2000
White Plains , New York

Judge of the Court of Claims