New York State Court of Claims

New York State Court of Claims

KAMINSKI v. THE STATE OF NEW YORK, #2000-011-507, Claim No. None, Motion No. M-61011


Claimant's motion for 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):

Thomas J. McNamara
Claimant's attorney:
Thomas Kaminski, Pro Se, DIN 00B0517
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Michael C. Rizzo, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
April 3, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The proposed claim alleges a series of incidents reaching back to June 1988 having to do with Claimant being released to parole and the subsequent supervision of his parole. However, in his affidavit in support of the motion, Claimant states that the incident underlying the proposed claim occurred on February 24, 1999. Consequently, events prior to that date are not considered part of the proposed claim and discussion of the factors considered on this motion is thus limited. When considering a motion for permission to late file a claim, the court is required to address six factors enumerated in Court of Claims Act §10(6). The first of those factors is whether there is a reasonable excuse for the delay in filing. According to Claimant the delay is the result of his lack of legal training and his incarceration since March 5, 1999.

Other factors to be considered are whether Defendant had notice of the essential facts of the claim and an opportunity to investigate. Claimant has offered no proof to establish that the State had either notice or the opportunity to investigate prior to this application. The issue of substantial prejudice is also not addressed by Claimant.

Also to be considered is whether the proposed claim has an appearance of merit. A claim is said to have merit when it is not patently groundless, frivolous or legally defective and there is reason to believe that a valid cause of action exists (Matter of Santana v New York StateThruway Auth., 92 Misc 2d 1). Even a cursory reading of the proposed claim reveals that in drafting the pleading Claimant has presented an incomplete account of the events on which the claim purports to be based. Claimant has simply recounted certain events and concluded that Defendant acted to intentionally inflict emotional harm and deprive him of his rights while acting under color of law. However, even if the court were to determine that the conclusory allegations offered by Claimant were prima facie sufficient , neither cause of action is available against the State (see, Brown v State of New York, 125 AD2d 750, 752, public policy prohibits the maintenance of a suit against the State for intentional infliction of emotional distress; see also, Will v Michigan Dept. of State Police, 491 US 58, State is not a person within the meaning of 42 U.S.C. §§ 1983)


Consequently, the proposed claim is without an appearance of merit.

An adequate alternate remedy in the form of an action against the individuals alleged to have acted to deprive Claimant of his rights may be available.

On balance, consideration of the factors in CCA §10(6) weigh against granting the application.

April 3, 2000
Saratoga Springs, New York

Judge of the Court of Claims

Papers Considered:
1. Notice of Motion dated December 14, 1999.
2. Affidavit in Support sworn to the 22nd day of December, 1999 with exhibits attached.
3. Affidavit of Michael C. Rizzo, Esq., in opposition sworn to the 6th day of January, 2000.
4. Responding Affidavit of Thomas Kaminski sworn to the 24th day of January, 2000.