New York State Court of Claims

New York State Court of Claims

GOBLE v. THE STATE OF NEW YORK, #2001-010-047, Claim No. 99390, Motion No. M-63559


Synopsis


Claimant's motion to strike certain affirmative defenses is Denied and claim is dismissed and permission to file a late claim is denied.

Case Information

UID:
2001-010-047
Claimant(s):
MIKKI L. GOBLE
Claimant short name:
GOBLE
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99390
Motion number(s):
M-63559
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
LIVINGSTON L. HATCH, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Michael Rosas, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 16, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on claimant's motion to strike certain affirmative defenses or for permission to file a late claim:[1]
Notice of Motion, Claimant's Supporting Affidavit, Attorney's Supporting Affirmation and Exhibits, Memorandum of Law.....................................................1

Attorney's Affirmation in Opposition......................................................................2

Filed Papers: Claim, Answer

On August 17, 1998, claimant served the Attorney General's office with a Notice of Intention (Exs. A, B). The Notice of Intention stated that the claim arose "July 4-5 early AM" at Taconic Correctional Facility (Ex. A), "when the following event occured [sic]: Assult [sic] Rape Sodomey [sic]. The items or injuries claimed are as follows: Mental Anguish bruises" (Ex. A).

On December 1, 1998, a claim was filed with the Court. The claim alleged:

4. The time, date, and place where this claim arose are as follows:


This claim arose on July 4 or July 5, 1998. The Claimant did not have a watch, and she does not know if the claim arose before midnight on July 4, 1998 or after midnight, which would make the date July 5, 1998. The claim arose at Taconic Correctional Facility, 250 Harris Road, Bedford Hills, New York 10507 in F Gallery, Room 84.


5. The nature of the claims [sic] is as follows:


Claimant, Mikki L. Goble, was raped, sodomized, and assaulted by a New York State Corrections Officer. The State of New York was negligent and careless in the hiring of and the continued employment of a Corrections Officer the State of New York knew or should have known was dealing inappropriately with female inmates. The State was negligent and careless in allowing this Corrections Officer to be a gallery officer at night with no supervision. His conduct was being investigated while he was still employed and still had access to female inmates when no one else was around to supervise his conduct.


Claim, Ex. E).

Defendant raised the following affirmative defenses in its answer: lack of subject matter jurisdiction (¶7); claim lacks verification (¶9); lack of jurisdiction because the Notice of Intention did not adequately describe the manner in which the incident occurred; thus the claim is untimely (¶ 11); lack of jurisdiction for failure to file the claim in accordance with Court of Claims Act §§ 10, 11 (¶ 12) (Answer, Ex. F).
Claimant's Motion to Strike
The critical issue as to this branch of claimant's motion is whether the Notice of Intention is sufficient. Court of Claims Act § 11(b) provides, "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed. *** The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated." Claimant's Notice of Intention fails to state, with sufficient specificity, the time and place where the claim arose (see, Torres v State of New York, 233 AD2d 389 [Notice of Intention did not sufficiently state where the claim arose]). Indeed, the Notice of Intention indicates "July 4-5" and does not specify a year. Additionally, the Notice of Intention does not "set forth a statement with sufficient specificity so as to enable the State to investigate the claim promptly and ascertain its liability" (Phillips v State of New York, 237 AD2d 590). Notably, the Notice of Intention fails to identify claimant's alleged attacker, e.g. another inmate or a State employee, and the Notice of Intention fails to state how defendant may be liable for the attack.

Accordingly, "[s]ince the Notice of Intention to file a claim was defective, the claimant could not properly avail herself of the two-year period in which to file a claim as provided by Court of Claims Act § 10(3)" (Torres v State of New York, supra). Hence, the claim was untimely filed and the Court lacks jurisdiction to hear the claim (Court of Claims Act §§ 10, 11; see, Gatz v State of New York, ___AD2d___, 725 NYS2d 864). Additionally, the Claim was not verified as required by Court of Claims Act § 11(b) (see, Vogel v State of New York, 187 Misc 2d 186; Martin v State of New York, 185 Misc 2d 799). Thus, that branch of claimant's motion which seeks to strike defendant's affirmative defenses is DENIED and Claim No. 99390 is dismissed.
Claimant's Late Claim Application
That branch of claimant's application which seeks leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in Court of Claims Act § 10(6): (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).

Preliminarily, claimant failed to include a Proposed Claim with her motion papers and, on this basis alone, the application warrants denial. In any event, assuming the Proposed Claim would be in the same form as the filed claim, the Court will consider the relevant factors. Claimant's purported excuse for failure to timely serve and file a claim is essentially ignorance of the law, which is not a reasonable excuse (see, Hall v State of New York, 28 AD2d 1034). Additionally, neither the Notice of Intention nor the filed claim identified claimant's attacker thereby prejudicing defendant by depriving it of notice and the opportunity to investigate the essential facts underlying the claim.

Most significantly, claimant has failed to demonstrate the appearance of merit of her proposed claim (see, Calco v State of New York, 165 AD2d 117; Rivers v State of New York, 159 AD2d 788; Williams v State of New York, 164 Misc 2d 783). 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).

While it is undisputed that Correction Officer Domingo Almanzar pleaded guilty to Rape in the Third Degree with regard to the July 4, 1998 incident, claimant has failed to show the appearance of merit of the proposed claim alleging negligent supervision and hiring. Claimant must submit more than bare conclusory allegations of negligence (see, Matter of Garguiolo v New York State Thruway Auth., 145 AD2d 915). Claimant has failed to allege specific facts as to how defendant may be liable. Significantly, the depositions, upon which claimant relies, fail to show that defendant was aware of any sexual misconduct committed by Almanzar prior to the incident. When Sister Antonio Maguire, the facility Catholic chaplin, was asked at her deposition if other incidents of sexual abuse committed by claimant's attacker had been reported to her, she replied, "not with him" but other correction officers (Ex. G, pp. 9-10). Virginia Doulos, a facility counselor, testified at her deposition that she did not know anything about what Almanzar was doing with other inmates, nor did Doulos recall ever learning that Almanzar was being monitored by Captain Reynolds (Ex. H, p. 13). Captain Reynolds, Almanzar's supervisor, testified at his deposition that, prior to the July 1998 incident, Reynolds was not aware of any inappropriate conduct committed by Almanzar with any other female inmate (Ex. I, pp. 8, 18, 19). Reynolds also testified that Almanzar was not being monitored for sexual misconduct with inmates (Ex. I, p. 21). The deposition testimony of Cheryl Bruce Jones, the supervisor of inmate grievances, established that, prior to the incident with claimant, Jones had no knowledge of any allegations against Almanzar concerning sexual misconduct (Ex. J, p. 7). Bruce also denied any knowledge of Almanzar being monitored (Ex. J, p. 9). Thus, claimant has failed to show the appearance of merit of her claim of negligent hiring and supervision.

Finally, claimant has another available remedy via suit against Almanzar individually.

Upon consideration of all the relevant factors, that branch of claimant's motion which seeks leave to file a late claim is DENIED.

July 16, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] Alternatively, claimant seeks to amend her Notice of Intention; however there is no authority for permitting amendment to a Notice of Intention ninety days after the accrual date. Thus, that branch of claimant's motion is DENIED.