New York State Court of Claims

New York State Court of Claims

NILES v. STATE OF NEW YORK, #2001-005-529, Claim No. NONE, Motion No. M-63532


Claimant's late claim sounding in assault and battery is granted regardless of a pending federal civil rights complaint subject to a pending dismissal motion.

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:
Clive Niles,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 4, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On July 11, 2001, the following papers, numbered 1 to 4, were read on motion by Claimant for permission to file a late claim:

1,2 Notice of Motion, Affidavit and Exhibits Annexed
  1. Opposing Affirmation and Exhibits Annexed
  2. Traverse to Defendant's Opposition
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.

September 4, 2001
Rochester, New York

Judge of the Court of Claims