HOWARD v. THE STATE OF NEW YORK, #2002-015-231, Claim No. NONE, Motion No.
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
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FRANCIS T. COLLINS
Raymond Howard, Pro Se
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
March 11, 2002
See also (multicaptioned
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
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.
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
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 
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
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
, 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
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
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
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
Springs, New York
HON. FRANCIS T. COLLINS
Judge of the Court of
The Court considered the following papers:
Notice of motion dated November 29, 2001;
Affidavit of Raymond Howard sworn to November 29, 2001 with exhibits;
Affirmation of G. Lawrence Dillon dated December 17, 2001 with exhibits;
Affidavit of Raymond Howard sworn to December 23, 2001.
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.
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
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
, 286 AD2d 490; Johnson v State of New York
, 37 NY2d 378).
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.