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.
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
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
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.
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
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
, Judith M. v Sisters of Charity Hosp.
, 93 NY2d 932 [hospital
not liable for sexual assault by orderly-employee]; N.X. v Cabrini Med.
, 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
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
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
Defendant submits the affidavit of Patricia L. Moore, the Substance Abuse
Counselor at Taconic Correctional Facility, which states in pertinent
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
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.