New York State Court of Claims

New York State Court of Claims

ROLON v. THE STATE OF NEW YORK, #2001-019-535, Claim No. NONE, Motion No. M-63450


Claimant's motion for permission to late file 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):

Claimant's attorney:
Defendant's attorney:
BY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 14, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-63450, dated April 26, 2001, and filed May 1, 2001.
  2. Affidavit of Angel E. Rolon, in support of motion, unsworn to, and dated April 26, 2001.
  3. Proposed Claim, dated April 26, 2001.
  4. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated May 8, 2001, and filed May 11, 2001.
  5. Reply Affidavit of Angel E. Rolon, in support of motion, unsworn to, dated May 14, 2001, and filed May 16, 2001.
I. Facts

This proposed claim arose during Claimant's incarceration in Southport Correctional Facility (hereinafter "Facility"). Claimant states that he received a misbehavior report for putting blood on a broom handle so a correctional officer would come in contact therewith on September 12, 1999. Claimant further alleges that the next day, September 13, 1999, he was "[p]hysically assaulted with chemical agents and forcefully removed from his cell by the defendant State agents." (Proposed Claim, ¶ 5). Claimant indicates he was cited for violating two Facility rules which he describes as "assault" and "unhygienic act". (Proposed Claim, ¶ 3). Claimant also avers that these charges were ultimately dismissed. Based upon these allegations, Claimant seeks permission to file a late claim to recover damages based upon intentional negligence (assault and battery) and the State's violation of the cruel and unusual punishment clause of the New York State Constitution. In opposition, the State asserts this motion is untimely since it was filed more than one year after the expiration of the statute of limitations applicable to intentional torts.

II. Jurisdiction

As a threshold issue, the Court must review whether it has jurisdiction to hear and determine this motion. It is well-settled that a motion for leave to file a late claim must be filed

"[b]efore 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." (CCA 10 [6]). As discussed above, this proposed claim alleges causes of action based upon "intentional negligence", more specifically assault and battery, as well as constitutional tort.

A. Intentional Tort/Assault & Battery

A cause of action for intentional tort including assault and battery must be filed within one year from the date the claim accrued. (CPLR 215 [3]). Here, the proposed cause of action for intentional tort accrued on September 13, 1999. This motion was filed on May 1, 2001. Consequently, this motion is untimely with respect to any assault and battery cause of action.

B. Constitutional Tort

A constitutional tort cause of action is subject to the three year limitations period provided in CPLR 214 (5). (Brown v State of New York, 221 AD2d 681, affd 89 NY2d 172). This Court has jurisdiction to consider this motion relative to the proposed constitutional tort cause of action, since this motion was filed within the applicable three year time period. As such, the Court will consider the merits of this motion relative only to the proposed constitutional tort cause of action.

III. CCA 10 (6) Factors

Initially, the Court notes that the State's opposing papers do not address any of the statutory factors, relying instead on its defense that the entire motion is time barred. Nevertheless, the substantive factors that the Court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances underlying the claim,

4. the claim appears to be meritorious,
5. 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

6. there is any other available remedy.

Whether the proposed claim appears meritorious, has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10). In order to establish a meritorious claim, Claimant must show that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe a valid claim exists. (Matter of Santana v New York State Thruway Auth., supra, at 11). Moreover, for the purposes of this motion "[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). The State does not dispute Claimant's factual allegations with affidavits from anyone with personal knowledge. (Powell v State of New York, 187 AD2d 848). Consequently, the facts alleged in Claimant's papers, limited as they are, will be deemed true for purposes of this motion.

Claimant's proposed claim alleges a violation of Article 1, § 5 [cruel and unusual punishment] of the New York State Constitution. In Brown v State of New York, 89 NY2d 172, while the Court of Appeals "[r]ecognized a civil damage remedy for a violation of a State constitutional provision in circumstances where the alleged violation did not fit within the definition of any common-law tort remedy, the Court did not hold that a constitutional tort remedy should be implied in all situations in which a violation of rights is alleged." (Remley v State of New York, 174 Misc 2d 523, 526). Thus, the issue presented here is whether there exists an available common law remedy which will provide sufficient protection of the cited constitutional provision. Clearly, the available common law remedies include a claim for intentional tort (based on the assault allegation) or wrongful confinement.[1] Consequently, this Court finds that there is no need to imply a constitutional remedy in light of the available and adequate common law remedies. Moreover, the fact that Claimant is now time-barred from commencing a claim based on assault does not alter this analysis. As such, Claimant's proposed cause of action alleging a violation of the cruel and unusual punishment clause of the New York State Constitution lacks an appearance of merit.

With respect to the remaining statutory factors, Claimant does not articulate any excuse for his delay other than a non sequitur that the State will not be prejudiced. This factor weighs against Claimant.

Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors. In opposition, the State does not specifically address these factors nor attempt to demonstrate any substantial prejudice from the delay. Nor does the State address the factor of the presence of alternative remedies. The Court weighs these four factors in Claimant's favor.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), and in view of the foregoing, the Court finds that two of the six factors, including the all important issue of merit, weigh against Claimant's motion.

Accordingly, for the reasons stated above, IT IS ORDERED, that Claimant's motion for permission to file a late claim, Motion No. M-63450, is DENIED.

June 14, 2001
Binghamton, New York

Judge of the Court of Claims

[1]Claimant has not pled a wrongful confinement cause of action. In any event, the Court notes that the facts as alleged would not support such a proposed cause of action since Claimant has not alleged the Facility violated any specific department rule or regulation in the imposition of his disciplinary measures. It is well-settled that the actions of correctional facility employees are quasi-judicial in nature and are entitled to absolute immunity unless the employees exceeded the scope of their authority or violated applicable rules and regulations in imposing inmate discipline. (Arteaga v State of New York, 72 NY2d 212, 220-221).