New York State Court of Claims

New York State Court of Claims

PUGH v. THE STATE OF NEW YORK, #2001-029-058, Claim No. NONE, Motion No. M-62941


Movant, an inmate, seeks permission to serve and file a late claim. He is a member of the Shi'at Muslim religion and feels the State violated his right to free exercise of religion in that he was not allowed to receive spiritual guidance. Granted.

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:
Thomas Pugh, Jr., Pro Se
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkBy: Dewey Lee, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 26, 2001
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Movant seeks permission to serve and file a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim, which is attached to movant's motion papers asserts that claimant is an inmate at Fishkill Correctional Facility and is a member of the Shi'at Muslim religious faith. Movant asserts that since September, 1999, the State has violated his right to free exercise of religion under New York State Constitution, Article 1, Section 3, as well as, Correction Law § 610 and Department of Correctional Services (DOCS) Directive 4750 in that he was not allowed to receive spiritual guidance in accordance with his religious beliefs.

In determining the motion, the Court, among other things, must look at certain factors set forth in Subdivision 6. We find movant's proffered excuse for the delay in filing the claim - ignorance of the law - not to be a reasonable excuse (Modern Transfer Co. v State of New York, 37 AD2d 756).

The next factors to be addressed - whether the defendant had notice of the essential facts constituting the claim, whether the defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file a timely claim or notice of intention resulted in substantial prejudice to the defendant - are interrelated and will be considered together. In its affidavit in opposition, the defendant neither claims lack of notice, lack of opportunity to investigate, nor that it was substantially prejudiced by the delay in filing a claim. The defendant cannot use its silence as a shield against an allegation that it had notice of the essential facts constituting the claim (Cole v State of New York, 64 AD2d 1023). These factors, therefore, weigh in movant's favor.

Also to be considered is whether the claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tend to favor the request (Rosenhack v State of New York, 112 Misc 2d 967; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438). It is movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require a movant to definitively establish the merit of the claim or overcome all legal objections thereto before the Court will permit the movant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

The State's attorney asserts that movant had failed to establish his claim has merit. According to counsel, the claim accrued in September, 1999, the claim alleges an intentional tort and intentional torts are governed by the one year statute of limitations which has already expired (affirmation in opposition, paragraph 4). Counsel further asserts that the claim fails to state a legally cognizable cause of action.

It is clear to the Court that claimant is asserting a State constitutional tort action. It has been held that such claims are governed by a three year statute of limitations (see, Brown v State of New York, 250 AD2d 314). Thus, contrary to counsel's assertions the statute of limitations has not yet expired.

In Matter of Cancel v Goord (181 Misc 2d 363), Supreme Court, Dutchess County, in a CPLR Article 78 proceeding, found the State's determination that "the spiritual needs of the inmates of the Shi'a Muslim faith can be met in religious services led by chaplins of the Sunni Muslim faith is arbitrary and capricious" (id at 365). The Court further stated that the determination is contrary to the objectives of a DOCS directive and the First Amendment right of religious liberty. The Appellate Division, Second Department affirmed the determination, as modified (by deleting the second and third decretal paragraphs of the judgment) ( AD2d , 717 NYS2d 610). The respondent , Commissioner of Correctional Services has filed a motion with the Court of Appeals seeking leave to appeal to that Court. The motion was returnable February 12, 2001. The State asserts that the law on the issue of whether a constitutional cause of action exists is unsettled until the Court of Appeals rules on the issue.

CPLR § 5519 (a) provides that service of a notice of appeal or an affidavit of intention to move for permission to appeal stays all proceedings to enforce the judgment or order appealed from pending the appeal or determination of the motion. Thus, as claimant's proposed claim does not seek to enforce the judgment in Matter of Cancel v Goord, (supra), CPLR § 5519 (a) is not implicated and the law is not unsettled.

At this stage of the proceedings, it should be noted, we generally take as true the factual allegations of a movant. Based upon the entire record, we find that the cause of action has the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings. It appears that movant has no other available remedy for monetary recovery.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in movant's favor. The mix of circumstances presented by this case fall well within the remedial purposes of the amendment to the Court of Claims Act enacted in 1976 (Ch. 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988; Plate v State of New York, 92 Misc 2d 1033). Movant has provided ample basis for a favorable exercise of this Court's discretion to grant him leave to file a late claim. Therefore, within thirty (30) days of the date of filing of this decision and order, movant shall file his proposed claim against the State with the Court and serve, by certified mail, return receipt requested, a copy of said proposed claim properly verified upon the Attorney General. In serving and filing his claim, movant is directed to follow all of the requirement of the Court of Claims Act, including § 11-a regarding the filing fee and the Uniform Rules for the Court of Claims.

February 26, 2001
White Plains, New York

Judge of the Court of Claims