New York State Court of Claims

New York State Court of Claims

SMYTHE v. THE STATE OF NEW YORK, #2000-010-056, Claim No. NONE, Motion No. M-61994


Synopsis


Claimant's late claim application

Case Information

UID:
2000-010-056
Claimant(s):
WENDY BUMMER SMYTHE
Claimant short name:
SMYTHE
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-61994
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
JOHN D. B. LEWIS, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Michael A. Rosas, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 23, 2000
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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, Proposed Notice of Claim, Memorandum of Law...............................................................................................1

Affirmation in Opposition........................................................................................2

The proposed claim alleges that, during claimant's incarceration at Bedford Hills Correctional Facility from July 1998 until April 19, 1999, Sergeant Edward Reynolds of the New York State Department of Correctional Services, engaged claimant in various forms of sexual conduct within the meaning of Penal Law § 130.00(10). Claimant, because of her status as an inmate, was incapable of consenting to such conduct. On February 1, 2000, Reynolds pled guilty to Rape in the Third Degree, to wit, on April 19, 1999 at 2:00 p.m., Reynolds engaged in sexual intercourse with claimant at Bedford Hills Correctional Facility. No evidence was submitted regarding the allegations of sexual misconduct from July 1988 until April 19, 1999. The proposed claim alleges that defendant was negligent in that, inter alia, Reynolds' sexual conduct with claimant was known to and ignored by his supervisors at Bedford Hills.[1]

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 six factors. Claimant purported excuse for her delay in filing a claim is that she "had trouble coming to terms with the fact that [she] was incapable of consenting to sexual relations with Reynolds" (Claimant's Supporting Affidavit, ¶ 15). Claimant's "trouble" does not amount to a valid physical or mental condition which rendered her incapable of timely filing a claim (see, Cabral v State of New York, 149 AD2d 453 [claimant's alleged hospitalization at an undisclosed time and unsupported by a physician's affidavit was insufficient to establish a reasonable excuse for her delay in contacting an attorney and timely filing a claim]; Goldstein
v
State of New York
, 75 AD2d 613 [alleged incapacity by virtue of hospitalization or convalescence, without either a physician's affidavit or hospital records, is an inadequate excuse for late filing]). Nor, is the purported neglect of the first attorney whom claimant hired a valid excuse (see, Brennan v State of New York, 36 AD2d 569; 500 Eighth Ave. Assoc. v State of New York, 30 AD2d 1010). Moreover, claimant offers no excuse for the delay in filing this late claim application after her current attorney was retained in February of this year (Claimant's Supporting Affidavit, ¶ 16).

Regarding the issue of notice and an opportunity to investigate, claimant submits only her own supporting affidavit. She does not submit any proof, other than her own self-serving statements, that she complained about Reynolds. She does not submit any written complaints nor does she even assert that she made any such formal complaints. Rather, her supporting affidavit is vague and conclusory as to when and what she allegedly told Superintendent Lord about Reynolds and the extent of Deputy Warden Stark's knowledge (see, Calco v State of New York, 165 AD2d 117 [late claim application denied where allegations of negligence were conclusory]; Matter of Garguiolo v New York State Thruway Auth., 145 AD2d 915 [late claim application denied where claimant provided only bare factual allegations]; Sevillia v State of New York, 91 AD2d 792 [late claim application denied where allegations of negligence were general and conclusory and without any supporting facts]). Additionally her statement that, "[i]t may also well be that another officer, Sergeant Notano, had been allowing me to leave my scheduled duties so that I would be sexually available to Reynolds" (Claimant's Supporting Affidavit, ¶ 14) is purely speculative. In sum, claimant's self-serving statements set forth in her supporting affidavit, without any other proof, failed to establish that defendant had notice of the essential facts of the proposed claim and an opportunity to investigate the underlying circumstances (see, Scripps v State of New York, 231 AD2d 704). Thus, claimant's failure to timely serve and file a claim has substantially prejudiced defendant.

Most significant, is the appearance of merit of the proposed claim. 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). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891).

In the instant case, it is undisputed that Reynolds pled guilty regarding the April 19, 1999 incident, however, claimant submits no proof regarding the allegations of sexual misconduct from July 1998 until April 19, 1999. Reynolds' plea regarding one incident of sexual misconduct does not, by itself, establish the appearance of merit of the proposed claim, i.e., that Reynolds' supervisors knew of Reynolds' sexual relationship with claimant and ignored it (see, Qing Liu v City Univ. of N.Y., 262 AD2d 473). Despite such serious allegations, as noted supra, there is an absence of proof regarding any formal complaints made by claimant and her own self-serving affidavit is vague, conclusory and speculative. Thus, the appearance of merit of the proposed claim was clearly not established on the proof submitted.

The Court is mindful that claimant's alternative remedy via suit against Reynolds individually in Supreme Court would, if successful, offer claimant limited prospects for recovery given Reynolds' assets (see, Epstein v State of New York, 88 AD2d 967). This, however, is but one factor in considering a late claim application and it does not outweigh the Court's finding regarding the other factors considered.

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


August 23, 2000
White Plains , New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]
Contrary to defendant's opposing affirmation, the proposed claim does not allege negligent hiring. Notably, the proposed claim does not allege a cause of action for any intentional torts committed by Reynolds; presumably because the statute of limitations has run out on any such claims and accordingly, they cannot be brought in a late claim (Court of Claims Act § 10[6]).