New York State Court of Claims

New York State Court of Claims

ROSSI v. THE STATE OF NEW YORK, #2001-019-542, Claim No. 104004, Motion Nos. M-63481, CM-63706


State's motion to dismiss granted; claim dismissed. Claimant's cross-motion for permission to late file 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: LEVENE, GOULDIN & THOMPSON, LLP Jerome F. Hanifin, Esq., of counsel
Third-party defendant's attorney:

Signature date:
July 9, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant State of New York (hereinafter "State") has made a dismissal motion.[1] Claimant opposes the motion and cross-moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6).[2]

The Court has considered the following papers in connection with this motion:
  1. Claim, filed March 22, 2001.
  2. Notice of Motion No. M-63481, dated May 3, 2001, and filed May 8, 2001.
  3. Affirmation of Jerome F. Hanifin, Esq., in support of motion, undated, with attached exhibits.
  4. "Claimant's Objection to Motion to Dismiss", Cross-Motion No. CM-63706, unsworn to, and filed May 17, 2001.
  5. "Affirmation in Response" of Jerome F. Hanifin, Esq., in support of Motion No. M-63481 and in opposition to Cross-Motion No. CM-63706, dated May 31, 2001, and filed June 4, 2001, with attached exhibits.
  6. "Reply to Defendant's Affirmation in Response", of Rudolph Rossi, in support of Cross-Motion No. CM-63706 and in opposition to Motion No. M-63481, dated June 7, 2001, and filed June 12, 2001,
  7. Letter from Jerome F. Hanifin, Esq., in opposition to Cross-Motion CM-63706, dated and received by the Court on June 14, 2001.
Claimant, an inmate, was a passenger on a State Department of Correctional Services transport van which was involved in an automobile accident on December 15, 2000. Claimant alleges he was injured in said accident and commenced a claim alleging, among other things, the State's negligence in causing the accident and the denial of medical treatment for his resulting injuries. Claimant also alleges that he was improperly denied an alternative meal in accordance with his religious beliefs when he finally arrived at the Downstate facility and pleads a constitutional tort based thereon. The Claim was served on the attorney general by certified mail, return receipt requested, on March 16, 2001, and filed in the Office of the Clerk on March 22, 2001. (See discussion infra pp 3-4). A notice of intention was apparently never served.[3]

I. State's Dismissal Motion

The State moves for dismissal on the grounds this Claim was neither filed in the Office of the Clerk nor served on the Attorney General's office within ninety days after the date of accrual pursuant to CCA 10 and 11.[4] With respect to the date of filing, Claimant insists that his Claim was timely received in the Office of the Clerk on the ninetieth day after accrual, namely March 15, 2001, but was improperly rejected and returned to him because it lacked either a filing fee or a poor person application. To the contrary, the State argues that Claimant's failure to submit the $50.00 filing fee or a poor person application simultaneously with his Claim is a jurisdictional defect which the Office of the Clerk was compelled to reject.

There is no dispute regarding the fact that this Claim was originally received in the Office of the Clerk on March 15, 2001 (the 90th day after this claim accrued) without either the $50.00 filing fee or a poor person application. The Office of the Clerk properly refused to file this Claim on March 15, 2001, since the Claim was not accompanied by either the $50.00 filing fee or a poor person application as mandated by CCA 11-a.[5] Consequently, this Claim was not filed until March 22, 2001, which is the 97th day after the claim accrued, which is when Claimant filed the Claim, together with a poor person application. It is a fundamental principle of practice in the Court of Claims that the filing and service requirements are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). As such, based on Claimant's failure to file this Claim in accordance with CCA 10 and 11, this Claim must be dismissed and the Court need not reach the parties arguments relative to the service of the Claim.

II. Cross-Motion for Permission to Late File

As a threshold issue, this Court must review whether it has the proper jurisdiction to

review and determine this motion. A motion for permission to file a late claim must be filed within the statute of limitations period attributable to the underlying claim as incorporated by reference into CCA 10 (6). Here, a three-year limitation period is applicable since the asserted theories for recovery contained in the proposed claim sound in negligence, thereby making this motion timely.

The factors 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.

The proposed claim[6] alleges four different theories of liability including negligence, denial of medical treatment, denial of food, and a constitutional claim. The Court will address the statutory factors collectively with respect to these stated causes of action, unless otherwise stated.

On the initial factor of an excusable delay, Claimant blames the Office of the Clerk for initially rejecting his papers and prison officials for failing to process his mail request in a timely fashion. These excuses amount to nothing more than the equivalent of ignorance of the law. It was incumbent upon Claimant to adhere to the statutory requirements and to adhere to the often stated admonition to litigants to leave time to spare when commencing litigation. (Siegel, NY Prac § 33, at 39 [3rd ed]). This factor weighs against Claimant.

Notice of the essential facts, opportunity to investigate, and lack of substantial prejudice comprise the next three factors. The State does not address these factors nor has it demonstrated that despite the delay in filing it cannot now prepare and proceed to trial. Moreover, the State does not argue that the delay in filing has generated an unfair advantage to Claimant. As such, the Court finds these three factors weigh in Claimant's favor.

With respect to the availability of an alternate remedy, Claimant argues he has none, whereas the State asserts that he could have brought an Article 78 proceeding relative to his accusation of a denial of medical treatment. The Court will weigh this factor in Claimant's favor on all the causes of action with the exception of the denial of food and constitutional tort causes of action for the reason stated below. (See discussion infra, pp 8-10).

With respect to the issue of merit, it is often stated that whether the proposed claim appears meritorious is 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). In order to establish a meritorious claim, it is Claimant's burden to show that the proposed claim is 1) not patently groundless, frivolous, or legally defective and 2) that there is reasonable cause to believe that a valid claim exists. (Matter of Santana v New York State Thruway Auth., supra, at 11).

Merit of the proposed negligence and denial of medical treatment causes of action

The Court will jointly address the merit of the proposed negligence and denial of medical treatment causes of action since Claimant's arguments relative thereto are interrelated. Inasmuch as Claimant alleges he was injured in an automobile accident, the State contends that this cause of action fails to appear meritorious because Claimant failed to plead he suffered a "serious injury" as that term is defined in Insurance Law 5102 (d). The State points to the lack of such allegations in the proposed claim, together with the filed police report on which it is noted that there was "no damage to either vehicle", as well as the DOCS' Ambulatory Health Record from the accident which says "no injuries noted." (Affirmation in Response of Jerome F. Hanifin, Esq., Exhibits D & E).

In opposition, Claimant states he is not a "covered person" under the statute. In the alternative, Claimant argues that his inability to establish a "serious injury" is related to his allegation of a denial of medical treatment and the State's cover-up thereof. More specifically, Claimant asserts that his DOCS' Ambulatory Health Record was falsified and that there is a cover-up of "[t]he seriousness of the incident and claimant's injuries." (Reply of Rudolph Rossi, ¶ 21 [2] & [3]).

On a motion for late filing when the underlying allegations involve an automobile accident, a claimant must make a threshold showing of serious injury pursuant to Insurance Law 5102 (d). (Matter of Edwards v State of New York, 119 Misc 2d 355). Nor is there any doubt that a passenger in a motor vehicle, such as Claimant here, is a "covered person" as defined by Insurance Law 5102 (j). Here, the proposed claim states in general terms that "claimant suffers neck and lower back injuries which to date limits his physical abilities." (Claim, ¶ 14). In Claimant's Reply, he adds that at trial he will establish that his injuries "continue to complicate his health and cause him emotional distress." (Reply of Rudolph Rossi, ¶ 21 [2]). Claimant argues that these allegations satisfy the serious injury definition pertaining to "[a] medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence....." (Insurance Law 5102 [d]; Reply of Rudolph Rossi, ¶ 21 [2]). However, it is well-settled that vague and conclusory statements do not qualify to satisfy Claimant's burden to make a showing of a serious injury. (Matter of Edwards v State of New York, supra, 119 Misc 2d 355). Additionally, while "[a]llegations in claimant's papers are normally deemed true for the purposes of a late claim motion [citation omitted], this rule benefits only the statements of an individual who has the knowledge or expertise required to support the cause of action pleaded." (Jolley v State of New York, 106 Misc 2d 550, 551-552). Viewing this record in its entirety, together with the lack of a physician's affidavit or affirmation relative to any injury, this Court finds that Claimant has failed to make a threshold showing of serious injury under the Insurance Law.

Additionally, the Court finds Claimant's argument that his denial of medical treatment, and the alleged cover-up thereof, adversely impacted his ability to document or prove a serious injury to be without merit. In any event, Claimant has failed to submit any expert affidavit supporting his contention that his treatment departed from accepted medical practices. (Macey v Hassam, 97 AD2d 919). As such, Claimant has failed to establish either of these causes of action appear meritorious.[7]

Merit of proposed cause of action alleging denial of food

The proposed claim contains minimal allegations on this theory of liability other than Claimant was denied food for 2 ½ days as a means of punishment. (Claim ¶ ¶ 10 & 13). Additional detail is contained in Claimant's Reply which states, in part, "[w]hile at the Downstate prison, claimant informed the defendants that he is a Rastafarian whose religious beliefs forbids the consumption of meat and requested th [sic] be given the religious alternative meal. That request was denied on the grounds that claimant was on keeplock disciplinary confinement." (Reply of Rudolph Rossi, ¶ 24). Claimant further alleges that "[d]enying a prisoner food as a form of punishment (ie, because of disciplinary keeplock status) is a violation of Correction Law § 137 (3) and Departmental Directives # 4933, 4932 and 4009 (I) and constitutes cruel and unusual punishment under State and Federal Constitutions." (Reply of Rudolph Rossi, ¶ 25).

Contrary to Claimant's theory, the use of a restricted diet in a reasonable manner as a form of punishment is within the discretion of correctional institutions. (Matter of Gray v Jones, 83 AD2d 679, rev'd on ground of mootness 56 NY2d 934; Breazil v Bartlett, 998 F Supp. 236; see also, Pelgrin, Practice Commentaries, McKinney's Cons Laws of NY, Book 10B, Correction Law 137, at 136). Moreover, DOCS has established grievance procedures by which this inmate could have contested this alleged form of punishment. Consequently, it was incumbent upon Claimant to first exhaust his administrative remedies by way of the established inmate grievance procedure and subsequent Article 78 proceeding as necessary. (Matter of Clarke v Senkowski, 255 AD2d 848; Correction Law 139; Matter of Patterson v Smith, 53 NY2d 98; Matter of Shahid v Coughlin, 83 AD2d 8, affd 56 NY2d 987; 7 NYCRR 701.1 et seq). As such, Claimant's proposed cause of action premised upon the denial of an "alternative meal" lacks the appearance of merit.

Merit of proposed constitutional tort cause of action

Claimant also asserts a violation of the State and Federal Constitutions based upon this denial of an alternative meal in conformity with his religious beliefs. It is well-settled that when either common law or statutory remedies are available to redress the same injuries in the alleged constitutional claim, no useful purpose is served by implying a constitutional remedy. (Remley v State of New York, 174 Misc 2d 523). Here, Claimant could have pursued the inmate grievance procedure and then commenced an Article 78 proceeding, if necessary. Inasmuch as Claimant had these other remedies available, this Court will not imply a constitutional tort remedy. Accordingly, Claimant's proposed cause of action premised upon a constitutional tort lacks the appearance of merit.

Accordingly, in light of the foregoing it is ORDERED that the State's motion to dismiss, Motion No. M-63481 is GRANTED and Claim No. 104004 is DISMISSED; and it is further

ORDERED that upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that the all-important issue of merit weighs against Claimant's motion with respect to each of the proposed causes of action. Accordingly, Claimant's cross-motion for permission to file a late claim, Cross-Motion No. CM- 63706, is DENIED.

July 9, 2001
Binghamton, New York

Judge of the Court of Claims

[1]The Court is treating this motion as a motion to dismiss pursuant to CPLR 3211 although not specifically delineated as such by the State.
[2]Although Claimant did not formally make a notice of cross-motion pursuant to CPLR 2215, the Court has treated Claimant's opposing papers as such in view of the fact that the State responded to the cross-motion on the merits and, as such, will not be prejudiced by such treatment, as well as in the name of judicial economy. Additionally, the Court has considered the numerous papers received by both parties including those submitted by both parties after the return date. (CPLR 2214 [c]).
[3]The State merely states "[u]pon information and belief, Claimant did not serve a Notice of Intention to File a Claim on the New York State Attorney General" (Affirmation of Jerome F. Hanifin, Esq., ¶ 7). However, Claimant has failed to come forward with any proof to the contrary. (Boudreau v Ivanov, 154 AD2d 638, 639).
[4]The State preserved this issue for review by raising, with particularity, the Claimant's failure to comply with CCA 10 as its Third Affirmative Defense in its Verified Answer. (CCA 11 [c]).
[5]CCA 11-a (1) states: "[t]he clerk of the court of claims shall require for the filing of a claim a fee of fifty dollars. The fee shall be payable in advance, unless a motion, affidavit, or certification pursuant to section eleven hundred one of the civil practice law and rules is filed with the claim, in which case the provisions of such section shall be applicable." (Emphasis added; see also, 22 NYCRR 206.5-b). CCA 11-a became effective December 7, 1999. (L.1999, c. 412).
[6]The Court is treating the pre-existing, albeit late, claim as the proposed claim. (Syndicate Bldg. Corp. v City Univ. of N.Y., 151 Misc 2d 492, 495 n 2). The defendant did not raise the issue that a proposed claim was not submitted and, in any event, contested the motion on the merits.
[7]Parenthetically, the Court notes Claimant's objection to the State attaching his ambulatory medical record to its motion papers. The physician-patient privilege of CPLR 4504 is waived when a litigant affirmatively puts his physical or mental condition at issue by commencing litigation. (Hoenig v Westphal, 52 NY2d 605, 610).