New York State Court of Claims

New York State Court of Claims

ORTEGA v. THE STATE OF NEW YORK, #2001-010-052, Claim No. NONE, Motion No. M-63389


Claimant's motion for leave to file a late claim is denied.

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):

Terry Jane Ruderman
Claimant's attorney:
TRIEF & OLKBy: Nelson Farber, Esq.
Defendant's attorney:
Attorney General for the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 18, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1-5 were read and considered by the Court on claimant's motion for leave to file a late claim:
Notice of Motion, Claimant's Supporting Affidavit, Attorney's Supporting Affirmation and Exhibits..........................................................................................1

Defendant's Opposing Affirmation and Exhibits.....................................................2

Claimant's Reply Affirmation and Exhibits.............................................................3

Defendant's Supplemental Affirmation and Exhibits.................................................4

Claimant's Supplemental Affirmation......................................................................5

The proposed claim alleges that, during claimant's incarceration at Taconic Correctional Facility ("Taconic"), from November 1999 through April 23, 2000, claimant was subjected to sexual attacks by Correction Officer Maldonado (Claimant's Ex. A). The proposed claim asserts: 1) a State constitutional claim; 2) battery; 3) assault; 4) intentional infliction of emotional distress/harassment; 5) negligence.[1]

Court of Claims Act § 10(6) provides that a motion for leave to file a late claim must be brought "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." The date of the last alleged attack is April 23, 2000 and the service and filing of claimant's late claim application was completed on April 18, 2001. Accordingly, the battery, assault and intentional infliction of emotional distress/harassment claims based upon acts which occurred prior to April 18, 2000 are time barred by the one year statute of limitations,[2] and this Court cannot consider claimant's application as it relates to those alleged wrongs (CPLR 215; Bergmann v State of New York, ___AD2d___, 722 NYS2d 82, 85 [the failure to file a late claim application within the prescribed time period creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief]). Thus, that branch of claimant's motion regarding such claims is DENIED.

With regard to claimant's State constitutional claim, a constitutional tort remedy will not be implied where a common law tort remedy is available (see, Brown v State of New York, 89 NY2d 172; Augat v State of New York, 244 AD2d 835; Remley v State of New York, 174 Misc 2d 523). Here, the alleged wrongs could have been addressed under timely interposed common law tort claims. Accordingly, a constitutional tort remedy will not be implied and claimant's application as to that claim is DENIED.

The remaining branch of claimant's application, which relates to the claims based upon acts which occurred on April 18, 2000 through April 23, 2000, is timely. As to these claims the Court must consider 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).

Claimant's purported excuse for delay in filing a claim is that, during her incarceration at Taconic, she feared retaliation from Maldonado and, after her release from Taconic and during her work release program, in June 2000, she received a threatening telephone call from Maldonado. Therefore, claimant argues that she has a valid excuse for not bringing her late claim application until after her release from defendant's custody in January 2001 and her subsequent consultation with an attorney. Such argument, even if presumptively valid, is belied by the fact that in April 2000, claimant supplied the State with genetic evidence for Maldonados's criminal prosecution by the Westchester County District Attorney's office (Claimant's Reply, ¶ 4). Accordingly, claimant's alleged fear is not an acceptable excuse and she also did not provide any reason for her failure to commence an action in the Court of Claims at that same time as the criminal proceeding.[3]

It is also noted that claimant has another available remedy via suit against Maldonado individually. Claimant's argument that a suit against Maldonado individually offers limited prospects for recovery is unsubstantiated and, in any event, is but one factor in considering a late claim application. Moreover, even a limited prospect for recovery against Maldonado individually would not outweigh the Court's findings regarding the other factors considered.

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, Witko v State of New York, 212 AD2d 889; Nyberg v State of New York, 154 Misc 2d 199).

Claimant's argument at paragraph three of her attorney's Supplemental Affirmation, i.e., "considering much of the information concerning this matter is in the sole possession of the State, the State's contentions regarding the alleged lack of substantiation for claimant's claim, if credited, would result in the State being insulated from liability for the actions of its guards at State prisons because a claimant would never be in possession of all of the facts," is inaccurate and not persuasive. Any claimant, who timely commences an action, has all available discovery devices; however, a claimant who fails to timely commence an action must first conquer the hurdle of demonstrating the appearance of merit of her claim.

Defendant cannot be held vicariously liable for the intentional torts of its employee, i.e., battery, assault and intentional infliction of emotional distress, where the conduct was not authorized or within the scope of employment (see, Judith M. v Sisters of Charity Hosp., 93 NY2d 932 [hospital not liable for sexual assault by orderly-employee]; N.X. v Cabrini Med. Ctr., 280 AD2d 34 [hospital not liable for sexual assault by surgical resident]; Forester v State of New York, 169 Misc 2d 531 [school not liable for assault by teacher]). Clearly, Maldonado's acts were neither authorized nor within the scope of his employment. Claimant has also failed to show the appearance of merit of her negligence claim (see, Witko v State of New York, supra at 891 ["A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action"]). Claimant has not shown any proof of any formal complaints about Maldonado prior to the alleged acts nor has claimant shown that the State either knew or should have known that Maldonado posed a potential danger.[4]

Claimant stated at paragraph 4 of her affidavit:

In February 2000, I asked my counselor at Taconic, Ms. Moore, what would happen if Corrections Officer Maldonado was found to have raped an inmate. I was told that for any action to be taken, proof would be required. Ms. Moore also informed me that other inmates had made allegations against Mr. Maldonado. Despite this, the State took no action.

(Claimant's Affidavit in Support of Motion). Claimant does not submit any proof of any formal complaints that either she or another inmate had made regarding Maldonado's conduct prior to the criminal proceeding initiated against him in April 2000.

Defendant submits the affidavit of Patricia L. Moore, the Substance Abuse Counselor at Taconic Correctional Facility, which states in pertinent part:

3. While I have no specific recollection of such a conversation, I can state that I never told claimant that other inmates had made allegations against Maldonado.

4. If an inmate were to ask me what would happen if a Corrections Officer was found to have raped an inmate, I would indicate that the inmate would have to report the incident and that, in order for any action to be taken, there would have to be evidence to support the allegation.

5. If an inmate were to ask me what would happen if a Corrections Officer was found to have raped an inmate, I would not consider such a hypothetical question to be a complaint.

6. If an inmate were to tell me that she had been raped by a Corrections Officer, I would immediately report the allegation to my supervisor.

7. Claimant never informed me that she had been raped.

(Defendant's Supplemental Affirmation, Ex. C). Claimant's unsubstantiated, self-serving statements, without any independent supporting evidence, are insufficient to establish the appearance of merit of her claim, i.e., that Maldonado's supervisors were aware of such conduct or should have been aware of Maldonado's propensities and yet failed to take appropriate action (see, Calco v State of New York, supra [late claim application denied where allegations of negligence were conclusory]; Matter of Garguiolo v New York State Thruway Auth., 145 AD2d 915 [late claim application denied where claimant provided only bare factual allegations]; Sevillia v State of New York, 91 AD2d 792 [late claim application denied where allegations of negligence were general and conclusory and without any supporting facts]).

Accordingly, upon consideration of all the relevant factors, claimant's motion which seeks leave to file a late claim regarding acts which occurred on April 18, 2000 through April 23, 2000 is DENIED.

October 18, 2001
White Plains, New York

Judge of the Court of Claims

[1] Maldonado pled guilty to Sodomy in the Third Degree (Defendant's Opposing Affirmation, Ex. A).
[2] Contrary to claimant's argument, the tolling provisions of CPLR 215(8) and 213-b are not applicable. CPLR 215(8) applies in a civil action against "the same defendant" who was the subject of a criminal action. Here, the defendant in the civil action is the State and the defendant in the criminal action was Correction Officer Maldonado, not the State. Similarly, CPLR 213-b applies in a civil action against "a defendant convicted of a crime which is the subject of such action." Here, the State, which is the subject defendant of the civil action was not convicted of any crime. The Second Department is in accord with such statutory interpretation (see, Villanueva v Comparetto, 180 AD2d 627) and this Court declines to follow the First Department reasoning in Alford v St. Nicholas Holding Corp., 218 AD2d 622, at 622, i.e., that, "the same defendant" (CPLR 215[8]) is broad enough to include persons so related to the criminal defendant as to be vicariously liable for his or her intentional torts." This reasoning is inapplicable here because, inter alia, the State is not vicariously liable for any intentional torts which Maldonado committed without authorization and beyond the scope of his employment.
[3] Claimant's reliance upon Noguera v Hasty, ___SDNY___, 2001 WL 243535, is misplaced [defendant-supervisors were aware of officer's sexual misconduct with inmates and failed to adequately supervise, discipline and protect plaintiff; rather supervisors were allegedly trying to catch the officer in the act].
[4] An investigation was conducted regarding the 1972 incident and defendant's conduct in hiring and retaining Maldonado was not negligent (see, Defendant's Reply, Exs. A, B). More than 25 years before the alleged acts and 15 years prior to Maldonado's employment as a correction officer, Maldonado was charged with attempted rape and convicted of disorderly conduct. The Court does not find that this was sufficient to put defendant on notice that Maldonado posed a potential danger to inmates. Nor does the Court find persuasive claimant's argument that acts of sexual misconduct committed by other correction officers should have put defendant on notice of Maldonado's alleged misconduct.