New York State Court of Claims

New York State Court of Claims

HOWARD v. THE STATE OF NEW YORK, #2002-015-231, Claim No. NONE, Motion No. M-64431


Late claim application brought by prison inmate who after being granted permission to attend step-father's funeral was not scheduled for transportation. Court found that claim for negligent infliction of emotional harm lacked merit due to claimant's failure to allege defendant's conduct unreasonably endangered plaintiff's physical safety or satisfied either of the two exceptions found in Dobisky v Rand, 248 AD 2d 903. Weighing all factors Court denied motion.

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

Signature date:
March 11, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for late claim relief pursuant to Court of Claims Act § 10 (6) is denied. The proposed claim seeks to recover damages for the negligent infliction of emotional distress proximately caused by the failure of DOCS personnel to transport movant from the Oneida Correctional Facility in Rome, New York to his stepfather's funeral in Batavia, New York on July 5, 2001 after informing movant that his request for temporary leave to attend the funeral had been granted. Movant's initial attempt to file the claim on November 5, 2001 was rejected by the Clerk of the Court who returned the papers under cover of correspondence dated November 15, 2001 (copies of this correspondence were attached to the motion papers). The instant motion was received by the Court on December 11, 2001.

The defendant's attorney opposed the motion alleging that late claim relief should be denied since the proposed claim lacks merit. Attached to defense counsel's affirmation in opposition are copies of papers submitted by him on a separate motion which were apparently never accepted by the Clerk of the Court.[1] With regard to the instant application defense counsel argues that the proposed claim fails to state a cause of action or assert a legal theory upon which the State is liable and further argues that the conduct complained of was official conduct and that claims against the State for the intentional infliction of emotional distress are prohibited as a matter of public policy.[2]

Movant submitted a reply affidavit in which he addressed the statutory factors applicable to an application for late claim relief pursuant to Court of Claims Act § 10 (6) to which the Court's attention now turns.

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 instant motion filed on December 11, 2001 is timely in that a claim asserting a cause of action for negligence resulting in personal injury is governed by the three year Statute of Limitation contained in CPLR § 214 (5). Although defense counsel refers to the "intentional" infliction of emotional distress, the claim does not assert such a cause of action. If an intentional tort were alleged, however, it too would be timely under the one year Statute of Limitations found in CPLR § 215 (3). The proposed claim does not allege that DOCS inaction was intentional.

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).

The excuses offered for the failure to timely commence a claim are that movant was unaware of the time requirements contained in Court of Claims Act § 10 and that the State's negligent failure to transport him to the funeral caused a depression which left movant unable to concentrate or to develop the mental energy necessary to undertake the task of researching and preparing a claim (see movant's reply affidavit, para 3).

Ignorance of the law is not an acceptable excuse and that factor weighs against granting the motion (E.K., Matter of, v State of New York, 235 AD2d 540). So too, movant's allegations regarding his inability to perform necessary research fails to convince the Court that he was unable to file a timely claim or to serve a timely notice of intention to file a claim on the Attorney General (see Crane v State of New York, 29 AD2d 1001). His assertion in this regard is belied by the fact that movant filed an inmate grievance complaint beginning on July 5, 2001 and pursued it through a timely appeal to the Superintendent several weeks later. The Court finds movant's proffered excuses for the delay unacceptable and this factor weighs against granting the motion.

The intertwined factors of notice, opportunity to investigate and prejudice will be considered together. Since movant filed an inmate grievance on July 5, 2001 concerning the same allegation of negligent inaction on the part of DOCS personnel which gave rise to this claim the Court finds that the State had notice, an opportunity to investigate and will not be prejudiced by the delay. Accordingly, these factors weigh in favor of granting the motion.

As to the appearance of merit, the movant must only demonstrate that the proposed claim is not "patently groundless, frivolous or legally defective" and "there is a reasonable cause to believe a valid cause of action does exist (Remley v State of New York, 174 Misc 2d 523, 524; Rosenhack v State of New York, 112 Misc 2d 967, 969-70).

The proposed claim appears to present a single cause of action sounding in negligent infliction of emotional distress arising out of the State's failure to arrange for movant's attendance at his stepfather's funeral following official approval of a temporary leave for that purpose. Section 113 of the Correction Law, in relevant part, states:
The commissioner of correctional services may permit any inmate confined by the department except one awaiting the sentence of death to attend the funeral of his or her father, mother, guardian or former guardian, child, brother, sister, husband, wife, grandparent, grandchild, ancestral uncle or ancestral aunt within the state . . .
It is clear from this statutory language that the decision to allow a prisoner to attend a relative's [3] funeral is a discretionary act. Non-specified DOCS personnel had already exercised their discretion by approving movant's temporary release request and all that remained to be done was the ministerial task of working out the logistics of transporting him from the DOCS facility to the funeral and returning him to the facility upon the conclusion of the funeral service. It was in this phase of the temporary release process that the admitted "staff error" occurred (see decision of Superintendent dated August 2, 2001, Movant's exhibit C). Having granted movant permission to attend the funeral DOCS thereby voluntarily assumed a duty to act reasonably to deliver movant to the site of the funeral and to return him to the facility upon its conclusion. The unexcused breach of such a duty might give rise to the State's liability on this cause of action in negligence (see, Kagan v State of New York, 221 AD2d 7; Ostrowski v State of New York, 186 Misc 2d 890) but for one additional requirement.

The Appellate Division, Third Department in Dobisky v Rand, 248 AD2d 903 held that:
A claim for negligent infliction of emotional distress requires a showing that defendants' conduct unreasonably endangered plaintiffs' physical safety or, as exceptions to this rule, that untruthful information regarding death was transmitted or that a corpse was negligently mishandled (see Johnson v State of New York, 37 NY2d 378, 381-382).
This holding is shared by the appellate courts in each of the State's four departments (see, Ben-Zvi v Kronish Lieb Weiner & Hellman, 278 AD2d 167 (1st Dept); Doe v Archbishop Stepinac High School, 286 AD2d 478 (2nd Dept.); Andrewski v Devine, 280 AD2d 992 (4th Dept.)).

Claimant does not allege that the failure of DOCS personnel to transport him to his stepfather's funeral unreasonably endangered or caused him to fear for his physical safety, or that the circumstances come within one of the two recognized exceptions related by the Third Department in Dobisky v Rand, supra. The absence of such an allegation renders the proposed claim "legally defective".

The final factor to be considered is whether claimant has an alternative remedy. He does not and this factor would otherwise weigh in favor of the movant.

A consideration of all the factors related in Court of Claims Act § 10 (6), including the apparent legal insufficiency of the proposed claim, requires denial of the instant application for late claim relief.

March 11, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated November 29, 2001;
  2. Affidavit of Raymond Howard sworn to November 29, 2001 with exhibits;
  3. Affirmation of G. Lawrence Dillon dated December 17, 2001 with exhibits;
  4. Affidavit of Raymond Howard sworn to December 23, 2001.

[1]Interestingly, defense counsel in his affirmation in opposition to the instant motion refers to a Pre- Answer Motion to Dismiss served on December 7, 2001. However, no claim had been filed and no claim was pending at the time the motion was purportedly made. Consequently, defendant's motion to dismiss was never calendared. The defendant's papers were eventually returned by the Clerk on February 27, 2002.
[2]Although it is true that a claim asserting intentional infliction of emotional distress against the State is prohibited as against public policy (Brown v State of New York, 125 AD2d 750, app dismissed 70 NY2d 747; Wheeler v State of New York, 104 AD2d 496) the cause of action in the proposed claim alleges negligent infliction of emotional distress which is not so prohibited (see, Taormino v State of New York, 286 AD2d 490; Johnson v State of New York, 37 NY2d 378).
[3]See also 7 NYCRR § 1901.1 (a) (1) (i) (a) which for purposes of deathbed/funeral visits further defines parent as "natural or legally adoptive." Although prison officials could have denied movant's request as relating to a non-covered relative (stepfather) no such denial occurred in this case.