New York State Court of Claims

New York State Court of Claims

ROJAS v. THE STATE OF NEW YORK, #2001-015-134, Claim No. NONE, Motion No. M-62847


Late claim application by pro se inmate alleging assault and battery by DOCS personnel granted on condition that a verified claim setting forth the total sum claimed be filed and served within 30 days of the date of filing of the Court's decision and order.

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:
Glenn Rojas, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 3, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's motion seeking late claim relief pursuant to Court of Claims Act § 10 (6) is granted upon the condition that a verified claim setting forth the total sum claimed as required in Court of Claims Act § 11 (b) shall be served and filed within 30 days of the date of filing of this decision and order. The movant seeks to recover damages for physical injuries allegedly sustained as a result of an assault and battery by certain unnamed correction officers at the Mid-State Correctional Facility, Marcy, New York on March 4, 2000. Movant, who was originally housed in S Block, was transferred to the special housing unit (SHU) for a contraband special watch following contact visitation with his family. He alleges that in the middle of the night of March 4, 2000 he was awakened from his sleep, handcuffed and battered in his cell by several correction officers. He alleges that one of the officers put his knee against movant's back and pressed him against the wall. When movant pushed back he was allegedly struck with a punch to the stomach followed by several more punches which caused him to fall to the floor. He alleges further that while on the floor the officers kicked him and that he rolled on the floor sustaining scratches on his upper back and stomach from contact with the floor and with the officers' boots. Movant alleges that a kick to the upper back near his shoulder caused a dislocation of his right shoulder. Despite having seen the nurse on March 6, 2000 and again on March 9, 2000, he alleged that he did not report the incident until he was transferred out of the SHU for fear of reprisal. Movant was returned to S Block on March 10, 2000 and reported the alleged battery to the attending nurse who noted on movant's chart that he complained of right shoulder pain and had numerous (over 40) healing scratches on his body, many of which she identified by length and location on a chart attached to movant's medical records. Photographs of movant's scratches were taken but their current whereabouts are unknown.

Movant filed an inmate grievance complaint on March 19, 2000. By formal notice dated April 28, 2000 the grievance was denied due to the movant's failure to produce evidence substantiating his charge of staff misconduct. He pursued an administrative appeal which was also denied. The Central Office Review Committee by written decision dated September 27, 2000 upheld the Superintendent's determination. A separate investigation of movant's allegations of staff misconduct was conducted by the New York State Inspector General's Office. No charges were filed as a result of that investigation. A copy of the Inspector General's report was submitted for the Court's in camera review. The defendant opposes the motion.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy."

The first issue for determination upon a late claim motion is whether the application is timely. Since the proposed claim asserts an intentional tort cause of action, the one year Statute of Limitations set forth in CPLR § 215(3) applies and the motion, which was filed on December 13, 2000, is properly before the Court.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

Movant has failed to establish a reasonable excuse for his failure to timely serve and file a claim or serve a notice of intention. The excuses advanced for the failure to timely pursue the claim are that the movant was unaware of the time constraints contained in the Court of Claims Act and was temporarily disabled as a result of his injuries and affected by pain killing and mood altering medications. First, ignorance of the law is not a valid excuse for failure to timely file a claim (Matter of E.K. v State of New York, 235 AD2d 540). Secondly, it is apparent from the movant's involvement with the institutional grievance procedures and the investigation conducted by the Inspector General that the movant was not so disabled as to prevent him from complying with the requirements of the Court of Claims Act (see, Plate v State of New York, 92 Misc 2d 1033). In light of movant's timely pursuit of the inmate grievance procedure and the initiation of the Inspector General's investigation the Court finds that the movant has failed to proffer a valid excuse and this factor weighs against granting the motion (Fenimore v State of New York, 28 AD2d 626).

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Movant's papers allege that the defendant had prompt notice of the underlying events, the opportunity to investigate and will not be prejudiced if late claim relief is granted. The Assistant Attorney General opposing the motion has not contested those allegations. As a consequence, this Court must accept those allegations as true for purposes of the motion (Schweickert v State of New York, 64 AD2d 1026). The timely filing of an inmate grievance complaint and the separate investigation conducted by the Inspector General provided the State prompt notice, the opportunity to investigate and establishes a lack of prejudice (Guifre v State of New York, 192 Misc 480). The factors of notice, opportunity to investigate and lack of prejudice favor granting the motion.

As to the issue of merit, all that the movant must establish is that the proposed claim has the appearance of merit in that "it is not patently groundless, frivolous or legally defective and there is reason to believe that a valid cause of action exists" (Remley v State of New York, 174 Misc 2d 523, 524). The proposed claim alleges that on March 4, 2000 movant was handcuffed in his cell and battered by three or four correction officers who punched and kicked him resulting in numerous scratches and a dislocated right shoulder. By the foregoing factual allegations the movant has demonstrated potential merit sufficient to support a grant of late claim relief.

As to the last factor, it would appear to the Court that movant has no other available remedy.

A review of all of the factors, especially the apparent lack of prejudice and potential merit of the proposed claim, persuades the Court that late claim relief is appropriate.

April 3, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 11, 2000;
  2. Affidavit of Glenn Rojas sworn to December 11, 2000, with exhibits;
  3. Affirmation of G. Lawrence Dillon dated January 30, 2001, with exhibits.