New York State Court of Claims

New York State Court of Claims

BAKER v. THE STATE OF NEW YORK, #2000-028-101530, Claim No. N/A, Motion No. M-62407


Section 10(6) motion for permission to file a late claim is granted where the motion was made four months after the incident, there may have been some contemporaneous investigation of the incident, and the proposed claim has the necessary appearance of merit.

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):

Claimant's attorney:
Lacy Baker, pro se
Defendant's attorney:
BY: Kevan Acton, Esq. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 21, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the claimant's motion pursuant to section 10(6) of the Court of Claims Act.

1. Notice of Motion and Supporting Affidavit of Lacy Baker, pro se, filed Sept. 18, 2000, with annexed Exhibit 1 ("Baker affidavit") seeking leave to file a late claim

2. Affirmation in Opposition of Kevan J. Acton, Esq., AAG, filed Oct. 16, 2000 ("Acton affirmation")

3. Reply Affidavit of Lacy Baker, pro se, filed Oct. 26, 2000, with annexed Exhibits ("Baker reply affidavit")

Filed papers: None

Claimant's proposed claim (Baker affidavit, Exh 1) alleges that on April 24, 2000, claimant, an inmate of Ulster Correctional Facility, was told to leave his cell by a corrections officer. He was then placed against a wall and pat-frisked by that officer and two other officers. Claimant alleges that in conducting the frisk and taking him to "the box," the officers used excessive force and kept his handcuffs so tight that they left a scar and caused permanent nerve damage. He further alleges that subsequently -- on April 25, April 26, April 27, April 28, April 29, May 1, and May 2 -- he attempted to obtain medical help but was denied treatment and never interviewed by someone from the medical unit.
This motion was brought four months after the proposed claim arose, and a like action against a citizen would not be barred by the applicable statute of limitations (CPLR 214). In determining a motion for permission to file a late claim, the Court must 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 Court in the exercise of its discretion balances these factors; the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Claimant does not attempt to argue that his delay in bringing his claim was excusable, but he does assert that the State had notice of the essential facts constituting the claim because employees of the State were aware of the events as they took place, because contemporaneous reports and memoranda were written regarding the incident, and because his injuries were photographed and examined when he was transported from the Ulster Correctional Facility's special housing unit on May 3, 2000. Counsel for defendant very professionally acknowledges that a Use of Force report should have been written but indicates that an investigation will be necessary to ascertain whether there is relevant documentation of the events in question (Acton affirmation, ¶ 3). It appears that there may well have been some contemporaneous inquiry and, in any event, the State is hardly more prejudiced by notice of a claim which arrived four months after the incident than it would have been with timely notice served three months (90 days) after the incident (Court of Claims Act §10[3]; see Nyberg v State of New York, 154 Misc 2d 199; Matter of Crawford v City Univ. of New York, 131 Misc 2d 1013). Consequently, the Court holds that defendant's opportunity to investigate the circumstances underlying the claim was not significantly impeded and that permitting the filing of an untimely claim would not result in substantial prejudice to the State.
It appears that claimant does not have an available remedy against any party other than the State. Claimant has also succeeded in establishing that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). There is absolutely no requirement, at this very preliminary stage, for a claimant to submit affidavits from medical professionals to establish the seriousness of his injuries (Acton affirmation, ¶ 4).
Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting claimant's motion for permission to file a late claim. Claimant is therefore directed to file and serve a claim identical to the proposed claim and to do so in conformity with the requirements of Court of Claims Act §§ 10 and 11 within sixty (60) days after this order is filed.

December 21, 2000
Albany, New York

Judge of the Court of Claims