Filed Papers: Claim, Answer
On December 27, 1999, claimant filed Claim No. 101685. On April 21, 2000, the
claim was served on the Attorney General's office. Defendant answered the claim
on May 21, 2000 and raised five affirmative defenses including lack of
jurisdiction based upon untimely service upon defendant (Answer, ¶ 6). In
November of 2000, claimant brought the instant motion for leave to serve and
file a late claim.
The proposed claim alleges that on July 19, 1999, defendant was negligent in
failing to transport claimant, an inmate at Sing Sing Correctional Facility, to
his mother's funeral in Brooklyn, NY.
The determination of a motion for leave to file a late claim requires the
Court to 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
presence or absence of any one factor is not determinative and the list of
factors is not exhaustive (see, Bay Terrace Coop. Section IV v New
York State Employees' Retirement System Policemen's & Firemen's Retirement
System, 55 NY2d 979).
The Court has considered the aforenoted six factors. Claimant's purported
excuse for his failure to timely serve and file a claim is essentially ignorance
of the law which is not a valid excuse (see, Innis v State of New
York, 92 AD2d 606, affd 60 NY2d 654). Additionally, the State would
be substantially prejudiced by a granting of claimant's application one year and
four months after the alleged incident which is the basis of the claim
(see, Malek v State of New York, 92 AD2d 659).
Most significantly, claimant has failed to demonstrate the appearance of merit
of the proposed claim (see, Qing Liu v City Univ. of N. Y., 262
AD2d 473; Matter of Gallagher v State of New York, 236 AD2d 400). Unlike
a party who has timely filed a claim, a party seeking to file a late claim has
the heavier burden of demonstrating that the claim appears to be meritorious
(see, Nyberg v State of New York, 154 Misc 2d 199; Matter of
Santana v New York State Thruway Auth., 92 Misc 2d 1). Here, even giving
this pro se claimant the most liberal reading of his papers, he has
failed to establish the appearance of merit of any cognizable claim.
The decision whether to grant a funeral visit is discretionary under Section
113 of the Corrections Law which states, "[t]he commissioner of correctional
services may permit any inmate confined by the department *** to attend
the funeral of his *** mother ***" (emphasis added). Accordingly, the refusal
to grant permission does not give rise to a viable cause of action (see,
Rivera v State of New York, 169 AD2d 885). Here, however, while claimant
was granted permission, two emergencies arose that day which prevented claimant
from being transported (Defendant's Ex. A). On the papers presented, claimant
has failed to establish the appearance of merit of his proposed claim
(see, Qing Liu v City Univ. of N.Y., supra; Matter of
Gallagher v State of New York, supra).
Accordingly, upon weighing all the factors, claimant's motion for leave to
file a late claim is DENIED.