Upon the foregoing papers, this motion is granted to the extent noted.
Claimant seeks permission to file a late claim pursuant to Court of Claims Act
§10(6). The underlying incident allegedly occurred on July 13, 2000, and
sounds in assault and battery. The motion herein was filed on May 18, 2001,
prior to the expiration of the one year limitation of CPLR 215(3) for such
causes of action, and thus this motion is timely made.
Claimant attaches a verified proposed claim which alleges, inter alia,
what may be characterized as a homosexual assault and battery upon Claimant's
person by an employee of the Department of Correctional Services (DOCS) at
Auburn Correctional Facility (Auburn). Claimant allegedly filed a grievance
relating to this incident, sought medical attention and filed a federal civil
rights claim on or about August 17, 2000. It is alleged that the Defendant, in
opposing the federal lawsuit, averred that claims sounding in assault and
battery should not be heard in federal court, but only in State court, and thus
Claimant has brought the instant proceeding.
As an excuse for failing to have timely filed in this Court, Claimant alleges
ignorance of the law and reliance upon an inmate law clerk who advised that only
a single action could be brought. Ignorance of the law has not been recognized
as providing a reasonable excuse.
Reviewing the other statutory factors, it appears that the Defendant was given
timely notice of the underlying facts and an opportunity to investigate as the
federal complaint was filed on August 17, 2000. It would follow then that no
substantial prejudice would ensue were I to grant the relief sought.
The Defendant's opposition relates primarily to one of the six statutory
factors to be considered under §10(6), that is, whether Claimant has any
other available remedy. The Defendant observes that Claimant has another
available remedy, the complaint in federal district court (attached as Exhibit A
to its papers), and urges that the Claimant has made an election of remedies.
On the other hand, Defendant also advises that there is a pending motion to
dismiss that complaint on the grounds that the federal complaint fails to
properly state a claim upon which relief can be granted, and/or that qualified
immunity bars the action (Exhibit B to the opposing papers). While an available
alternative remedy is one of the six factors, no one factor, save perhaps the
appearance of meritoriousness, is determinative. Furthermore, given the pending
motion and grounds raised for dismissal of the federal claim, it is interesting
to consider whether this qualifies as an available remedy, in light of the
Defendant's argument there that if the federal claims are dismissed "there is
certainly no special reason for this Court [federal district court] to maintain
jurisdiction over the state tort of assault and battery" (Page 9 of Defendant's
memorandum in support - Exhibit B). Given those arguments and the pending
dismissal motion, I am disinclined to find an existing alternative remedy. Of
course, Claimant would not be entitled to a double recovery in any event.
In reviewing the last, and generally most significant of the statutory factors,
the appearance of meritoriousness, Claimant alleges an assault and battery by an
employee of the Defendant. The Defendant correctly notes that most of the
damages sought, consisting of exemplary and punitive damages, some of which
arise from "mental anguish, psychological and emotional stress" purportedly
caused by the homosexual advances of a state employee, are not available in this
Court. First punitive damages, which seemingly include exemplary damages, are
not permitted as a matter of public policy (Sharapata v Town of Islip, 56
NY2d 332 ). Second, to the extent that the proposed claim can be read as
alleging a cause of action sounding in the intentional infliction of emotional
distress, public policy prohibits such an action against the State (Brown v
State of New York, 125 AD2d 750 appeal dismissed 70 NY2d 747;
Wheeler v State of New York, 104 AD2d 496; De Lesline v State of New
York, 91 AD2d 785, lv denied 58 NY2d 610). Costs and disbursements
are not permitted by statute (Court of Claims Act Section 27). Irreparable
damages generally exist in the law pertaining to injunctions, addressing damages
for which no certain pecuniary standard exists for measurement, a circumstance
which does not exist here. Thus the only damages to which Claimant might be
entitled are compensatory damages.
Accordingly, upon balancing the statutory factors and reviewing the papers
before me, I deem it a provident exercise of my discretion to permit a late
claim to be filed herein, sounding only in assault and battery and
seeking only compensatory damages. Claimant shall serve and file a
verified claim, consistent with this decision and order, within 30 days of
service of a file-stamped copy of this order, in compliance with Sections 10 and
11 of the Court of Claims Act, and particularly with the filing fee requirements
of Section 11-a.
The motion is granted to the extent noted.