New York State Court of Claims

New York State Court of Claims

YOUNIS v. THE STATE OF NEW YORK, #2001-013-012, , Motion No. M-63393


Claimant's motion for permission to late file is denied where the claim is almost three years late, no justifiable excuse is give, prejudice to the State would result, and Claimant is already pursuing another action, based on the same allegations, in federal court.

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:
Defendant's attorney:
Attorney General of the State of New York
BY: Thomas G. Ramsay, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 10, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On June 20, 2001, the following papers were read on Claimant's motion for permission to late file an untimely claim:
1. Notice of Motion and Supporting Affidavit of Andrea R. Polvino, Esq. ("Polvino Affidavit"), with Annexed Exhibits

2. Affirmation in Opposition of Thomas G. Ramsay, Esq., Assistant Attorney General ("Ramsay Affirmation"), with Annexed Exhibits

3. Reply Affidavit of Andrea R. Polvino, Esq. ("Polvino Reply Affidavit")

Claimant's proposed claim (Polvino Affidavit, Exhibit C) alleges that on May 28, 1998, Claimant was transferred from Elmira Correctional Facility (Elmira) to Attica Correctional Facility (Attica). Although he was supposed to be housed as a protective custody inmate, he was assigned to a general population cell block. The following day Claimant asked to be moved to protective custody, but this move did not take place.

On June 3, 1998, Claimant was escorted from his assigned cell to the property room to receive items transferred from Elmira and was assaulted by an unknown inmate working in the property room. He advised Correction Officer Kolacz (apparently the property officer) of this assault and was returned to his cell. Upon arriving at his cell, Claimant alleged that he was "thrown on the floor" by the officer. On June 4, 1998, Claimant was transferred to another cell, still within the general population, despite repeated requests to be moved to protective custody. The following day, June 5, 1998, he was strip searched while returning from a visit and told to wait for an escort in the hallway outside the visiting area. While in that hallway, Claimant was assaulted by an unknown inmate, in the presence of two correction officers. Later that day, after being returned to his cell, it is alleged that an unknown officer allowed another inmate to enter Claimant's cell and assault him. After staying in the infirmary from June 5 to June 10, Claimant was again placed in the general prison population, but was finally granted protective custody on June 17, 1998.

The proposed claim sets forth three causes of action alleging that the State: (1) failed to place Claimant in protective custody despite his requests, despite the availability of such housing, and despite knowing that he was a high risk for assault because of the nature of the crime he committed; (2) refused to permit Claimant to submit a grievance relating to the June 5, 1998 assault; and (3) failed to adequately train and supervise its employees in providing for the safety of inmates who are at higher risk of assault because of the nature of the crimes for which they were convicted. This motion was brought slightly less than three years after the date of the earliest incident recited above, and a like action against a citizen would not be barred by the applicable statute of limitations (CPLR 214).

In determining a motion for permission to file a late claim, the Court must consider, among other relevant factors, the six factors set for 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 Court, in the exercise of its discretion, balances these factors; the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Claimant failed to timely initiate an action in this Court because he chose to proceed in Federal court, filing an action in the United States District Court for the Western District of New York in February 2000 (Polvino Affidavit, Exhibit A). Subsequently, the counsel appearing on this motion was assigned as co-counsel to represent him in the federal action and determined that suit should have been brought in the Court of Claims. The date of the assignment is not evident in the papers before me, but I will assume for the sake of argument that this motion was made expeditiously once that conclusion was reached. Ignorance of the law or of the proper forum in which to bring suit does not excuse a litigant's failure to comply with the statutory requirements for instituting an action in the Court of Claims (see, e.g., Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854 [mistake as to proper entity to sue]; Sevillia v State of New York, 91 AD2d 792 [claimant initially hired out-of-state attorney who did not take proper action]; Donovan v New York State Teachers' Retirement System, 87 AD2d 664 [mistakenly commencing action in Supreme Court]; Block v New York State Thruway Auth., 69 AD2d 930 [clerical error leading to filing on the 94th day]; Royal Ins. Co. of America v State of New York, 149 Misc 2d 531 [proceeding in improper forum]). Nor does the fact that Claimant is a lay person, and moreover one who is incarcerated, provide any additional leeway, unless it can be shown that the conditions of incarceration prevented the litigant from taking effective steps (Bommarito v State of New York, 35 AD2d 458; Plate v State of New York, 92 Misc 2d 1033, 1037-1038) or that the delay resulted from the fact that the inmate first attempted to obtain relief by way of institutional claim (Arponte v State of New York, Ct Cl, April 16, 1987 [Motion No. M-36850], E. Margolis, J.; Bencivenga v State of New York, Ct Cl, March 7, 1979 [Silverman, Jr.]).

Finally, I must reject counsel's effort to argue that the defense of untimeliness or improper service have been waived by the State because they were not raised in its Answer in the Federal court action (Polvino Affidavit, ¶5, Exhibit B). In the first place, compliance with the requirements of the Court of Claims was not at issue in the Federal proceeding, so there was no need to raise defenses to such requirements in that forum. More importantly, the time and service requirements for bringing suit in this Court are jurisdictional in nature, and failure to comply with them deprives this Court of the power to hear the claim (Dreger v New York State Thruway Auth., 81 NY2d 721, 724; Bogel v State of New York, 175 AD2d 493). Consequently, Defendant may not "waive" defenses based on such failure except by failing to raise them in either the answer to a claim filed in this Court or a pre-anser motion directed to such claim, pursuant to Court of Claims Act §11[c]. For these reasons, Claimant has failed to provide an acceptable excuse for his delay.

Claimant asserts that the State had adequate notice of the essential facts constituting the claim because of the Federal action, which was commenced in February 2000. That date, however, is more than one and one-half years after the claim accrued, and Claimant does not attempt to argue that the passage of that much time did not have some prejudicial effect on the State's ability to investigate the facts giving rise to the claim and to begin preparing its defense. Given the nature of the allegations and the absence of documentary proof of events, which would not be affected by the passage of time, I conclude that permitting the filing of an untimely claim would result in substantial prejudice to the State.

It appears that Claimant has another available remedy in the Federal action which he has already commenced and in which he has been assigned counsel to represent him. While the defense of sovereign immunity may create difficulties for him in that proceeding, the same defense is available in an action against the State in this Court.

If other factors supported granting the relief sought, I would hold that Claimant has succeeded in establishing that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). The validity of the claim rests on many facts not known or alleged, however, so it is not possible to say that the potential merit of the claim is so strong that it should overcome the absence of other factors favoring a positive disposition of this motion.

Consideration of the factors set forth in Court of Claims Act §10(6) lead to the conclusion that Claimant is not entitled to the requested relief, and consequently the motion is denied.

August 10, 2001
Rochester, New York

Judge of the Court of Claims