New York State Court of Claims

New York State Court of Claims

REILLY-USHER v. THE STATE OF NEW YORK, #2001-009-051, Claim No. None, Motion No. M-63757


Claimant's application for permission to serve and file a late claim was granted.

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:
BY: Ronald R. Benjamin, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Christopher Wiles, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
October 31, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks permission to serve and file a late claim pursuant to Court of Claims Act, § 10(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Attorney Affirmation, with Exhibit (Proposed Claim) 1,2

Affirmation in Opposition 3

According to the allegations set forth in the proposed claim, claimant was convicted of the crime of forgery in the second degree, and during her period of incarceration, participated in a program at Willard Correctional Facility from November 9, 2000 through February 13, 2001.

During her period of confinement at Willard Correctional Facility, claimant alleges that she was repeatedly sexually assaulted by a drill instructor at the facility. Claimant asserts that the State was negligent in failing to provide a secure environment in the facility, and failed to protect her from these sexual assaults, and that it failed to properly screen, supervise, instruct and train its employees.

As set forth in the attorney's affirmation in support of this application, claimant was apparently released to parole status on February 13, 2001. Claimant's attorney states that he was first contacted by claimant regarding the incidents which form the basis of this claim on June 18, 2001. This application seeking permission to serve and file a late claim ensued.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely file a claim and the failure to serve upon the Attorney General a timely claim or notice of intention; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117).

A claim alleging acts of negligence against the State must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a notice of intention is served upon the Attorney General within such 90 days (Court of Claims Act, § 10[3]). In this case, although the specific dates of the alleged incidents are not set forth in the proposed claim, the acts complained of allegedly occurred between November 9, 2000 and February 13, 2001. Even if the Court considers claimant's release date of February 13, 2001 as the accrual date of this action, claimant took no action to pursue this claim within such 90 day period, since her first contact with her attorney occurred on June 18, 2001. Claimant's attorney states that claimant was in fear of losing her parole status if she pursued this claim, and therefore did not take any action regarding this matter upon her release from Willard Correctional Facility. While the Court can understand that claimant may have been fearful of reprisals while incarcerated, and therefore did not take any action regarding the alleged incidents while at Willard, the Court does not find that these fears continued to be justified upon her release. Therefore, the Court finds that claimant has not provided a reasonable excuse for her delay in pursuing this claim, as she waited more than 90 days from her release before making any attempt whatsoever to pursue her claim.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. In this application, claimant has provided no information to indicate that the State either had notice or any opportunity to investigate the circumstances underlying this claim, prior to the submission of this motion. Defendant argues that because of the delay, it will be prejudiced in its investigation of the claim, in that witnesses and evidence may not be available at this point in time. As set forth previously herein, the alleged assaults occurred during the time that claimant was incarcerated at Willard Correctional Facility, between the months of November, 2000 and February, 2001. Since this application was served in June, 2001, there was, at the most, an elapsed time of somewhere between five and eight months from the dates of the alleged incidents to the time that notice was provided to the State of this potential claim. Based upon the nature of the allegations, even though the State did not have any notice or the opportunity to investigate this claim, the Court does not believe that the State will encounter any substantial prejudice in defending the claim should this Court grant the requested relief.

In order to establish a meritorious claim, it is the burden of the claimant to show that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1). Claimant only has to establish the appearance of merit and need not prove a prima facie case at this stage of the proceedings.

In this application, claimant has submitted an affirmation from her attorney and a verified proposed claim. The affirmation of the attorney, however, who does not purport to have personal knowledge of the facts, is of no value in determining whether a meritorious claim has been articulated (cf., Vermette v Kenworth Truck Co., 68 NY2d 714; Hasbrouck v City of Gloversville, 102 AD2d 905, affd 63 NY2d 916).

In her proposed claim, claimant has alleged negligence against the State for failing to maintain a safe and secure environment in the correctional facility, and for failure to properly screen, supervise, instruct and train its employees. Claimant contends that the sexual assaults were a direct result of these alleged acts of negligence. This proposed claim, verified by claimant, therefore establishes reasonable cause to believe that a valid claim exists. For purposes of this application, therefore, the Court finds that a meritorious claim has been alleged.

It does not appear that claimant has any other available remedy.

The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979) and none of the factors can require denial as a matter of law.

Upon weighing and considering all of the factors set forth in Court of Claims Act, Section 10(6), it is the opinion of this Court that claimant should be allowed to file the proposed claim.

Accordingly, it is

ORDERED, that Motion No. M-63757 is hereby GRANTED, and claimant is directed to serve her claim upon the Attorney General and to file the claim with the Chief Clerk of the Court of Claims within 45 days from the filing date of this decision and order in the Clerk's office, with such service and filing to be in accordance with the requirements of Court of Claims Act, §§ 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.

October 31, 2001
Syracuse, New York

Judge of the Court of Claims