New York State Court of Claims

New York State Court of Claims

PABON v. THE STATE OF NEW YORK, #2001-016-212, Claim No. None, Motion No. M-63905


Late claim motion arising from incident in which inmate claimant was allegedly shackled for 16 hours on medical trip was 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):

Alan C. Marin
Claimant's attorney:
Anibal Pabon
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: J. Gardner Ryan, AAG
Third-party defendant's attorney:

Signature date:
December 12, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Anibal Pabon for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In his proposed claim, Pabon asserts that defendant was negligent in causing him to be handcuffed and shackled for the duration of an outside medical trip that lasted approximately sixteen hours. Claimant asserts that his claim is "based upon a continuing practice of D.O.C.S. [in] allowing its escort officers working at Mid-Orange Correctional Facility [to] handcuff its prisoners for upwards of 16 hours long while mak[ing] ‘outside' medical trips . . ." In determining whether to grant this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) the defendant was substantially prejudiced; (4) the claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

The first, second and third factors – whether the state had notice of the essential facts, whether the state had an opportunity to investigate and whether the state would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). Claimant contends that the State can investigate by "simply questioning the guards and the other inmates" who were similarly shackled. Claimant also asserts that the State was on notice because he filed an internal grievance several days after the incident and because another one of the shackled inmates served a notice of intention following the incident. Claimant does not supply a copy of the grievance or indicate its disposition.[2] He also lists as an exhibit an "unusual [incident] report" created on June 16, 2001, but does not in fact attach it. Assuming that the incident report and grievance were prepared as alleged by claimant, defendant may not be prejudiced and may have an opportunity to investigate. It is clear, however, that defendant had no notice that Pabon intended to file a claim in this Court prior to this motion.

As to an alternate remedy, claimant states that he has no other remedy. However, to the extent that he complains of a DOCS policy of shackling inmates on outside medical trips, his venue may lie in an Article 78 proceeding in Supreme Court after exhaustion of his administrative remedies. See, e.g., Ross v Ricks, 268 AD2d 925, 700 NYS2d 873 (3d Dept 2000). As to excuse, claimant asserts that he was unaware of the filing requirements of the Court of Claims Act. This is not a sufficient excuse for the purposes of the Act. See, e.g., Matter of E.K. v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).

The final factor to be considered is merit. Claimant has not suggested that defendant violated any applicable DOCS policies and procedures with regard to shackling and handcuffing. To the contrary, he complains of the restraint policy in place for outside medical trips. He has provided no authority for the contention that such a policy could support a potential cause of action here.

Specifically, as to the trip on April 30, 2001, Pabon asserts that as a result of the restraints, he suffered pain and swelling, lacerations, scarring and "lameness of the full use" of his hands and legs. However, he does not attach or even purport to attach medical records concerning such injuries. In sum, claimant falls short of the standard set forth in Matter of Santana v NYS Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977) for the appearance of merit: (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

For the foregoing reasons, having reviewed the parties' submissions[3], IT IS ORDERED that motion no. M-63905 be denied.

December 12, 2001
New York, New York

Judge of the Court of Claims

  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]Claimant refers to several exhibits in his papers, but does not attach them.
  3. [3]The following were reviewed: claimant's notice of motion with affidavit in support and proposed claim; and defendant's affirmation in opposition.