New York State Court of Claims

New York State Court of Claims

GILL v. THE STATE OF NEW YORK, #2002-019-584, Claim No. NONE, Motion No. M-65605


Claimant's motion for permission to file late claim alleging ministerial negligence and wrongful confinement 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: Carol A. Cocchiola, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
November 8, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, 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-65605, dated July 17, 2002, and filed August 5, 2002.
  2. Affidavit of Anthony G. Gill, in support of motion, sworn to July 17, 2002, with attached exhibits.
  3. Proposed Claim, dated May 9, 2002, with attached exhibits.
  4. Affirmation of Carol A. Cocchiola, AAG, in opposition to motion, dated September 25, 2002, and filed September 25, 2002, with attached exhibits.
  5. Affidavit of Steven R. Giblin, in opposition to motion, sworn to September 19, 2002.
The proposed claim alleges that Claimant was deprived of recreation for ten non-consecutive days in March and April of 2002 while incarcerated in Elmira Correctional Facility (hereinafter "Elmira" or "Facility").[1] Upon transfer into Elmira, Claimant was assigned to an orientation program starting March 18, 2002 which was taught by Department of Correctional Services (hereinafter "DOCS") counselor, Steven R. Giblin. Claimant alleges that he received a medical excuse from the orientation program on March 19, 2002. Mr. Giblin avers that Claimant completed the program. (State's Exhibit B, ¶ 3). In any event, in a memorandum from Elmira's Guidance Unit dated March 21, 2002, Claimant was advised that "[t]he Program Committee will officially assign you to Recreation and Unemployed statuses, and the green sticker on the back of your ID card will be changed by Mr. Giblin shortly." (Proposed Claim, Exhibit A). Claimant alleges that his sticker was not changed from green to red until April 12, 2002. In the interim, Claimant alleges that he was turned away from morning recreation because he possessed the wrong color sticker. (Proposed Claim, n 2). According to Mr. Giblin, a green sticker on the back of an inmate's identification card signifies orientation status which further permits an inmate to attend recreation in the evening after orientation class, whereas a red sticker reflects a general programming status which allows an inmate to attend both morning and afternoon recreation. (State's Exhibit B, ¶ 5). The theory of liability is alternately stated as ministerial negligence and wrongful confinement.

As a threshold issue, the Court notes that it has jurisdiction to review and determine this motion since it was filed within three years from the date of accrual. (CPLR 214; CCA 10 [6]).

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 Court will first examine the factor that has been characterized as the most decisive component in determining a motion under CCA 10 (6), namely whether the proposed claim appears meritorious, 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, Claimant must establish that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. (Id. at 11). Although a late filing applicant need not overcome all legal objections relative to the merit of the proposed claim, an applicant must establish the probable existence of evidence necessary to support the fundamental elements of the proposed claim. (Id. at 11-12). That having been said, a review of the burden of proof that would be applicable at trial is a useful guidepost.

Here, Claimant alleges both ministerial negligence and wrongful confinement as the legal theories for his recovery. With respect to wrongful confinement, a claimant must demonstrate that (1) defendant intended to confine him; (2) he was conscious of the confinement; (3) he did not consent to the confinement; and (4) the confinement was not otherwise privileged. (Broughton v State of New York, 37 NY2d 451, 456, cert denied sub nom Schanbarger v Kellogg, 423 US 929). Generally, disciplinary measures imposed consistent with the governing rules and regulations are covered by immunity, except in cases in which the State exceeded the scope of their authority or violated applicable rules and regulations. (Arteaga v State of New York, 72 NY2d 212). Ministerial negligence is merely a way of removing the issue of governmental immunity from a case (Kagan v State of New York, 221 AD2d 7, 10), but it does not mean that alleged act or omission necessarily equates to a finding of liability. (Lauer v City of New York, 95 NY2d 95, 99).

In opposition, the State submits an affidavit from DOCS Facility Counselor, Steven R. Giblin, who avers he began working as the Transitional Services Coordinator at Elmira in February 2000 and recalls Claimant as part of his orientation program in March 2002. (State's Exhibit B). Mr. Giblin states that "[i]t is my belief Mr. Gill had the opportunity to attend recreation every day he was at Elmira Correctional Facility. The fact that he was assigned to orientation and/or general programming should not have affected his right to attend recreation each day." (Affidavit of Steven R. Giblin, ¶ 6). In other words, the State views Claimant's complaint to be that he was not permitted to attend recreation when "he desired", not that he was deprived of recreation per se. (Affirmation of Carol A. Cocchiola, AAG, ¶ 12).

In this Court's view, Claimant has not demonstrated that his proposed claim appears meritorious. With respect to the changing of Claimant's sticker, Claimant does not cite any rule or regulation that would have compelled the State to change his sticker within any specific period of time. (Arteaga v State of New York, 72 NY2d 212). With respect to Claimant's allegation that he was completely denied recreation, Claimant's papers leave this Court with too many unanswered questions. Generally, "[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). However, here the State has contradicted many of Claimant's allegations with the affidavit of Mr. Giblin. For example, Mr. Giblin avers that Claimant completed his orientation program as demonstrated by Claimant's grievance for a completion certificate; that the color of an inmate's sticker does not totally deprive him of recreation but only impacts the time of day that recreation is available; and that this Claimant would have had the opportunity to attend recreation every day regardless of the color of his sticker. In short, on this record this Court finds that it is equally plausible that Claimant was able to attend recreation each day, but chose not to because he did not like the time he was offered. In view of these uncertainties, the Court finds that Claimant has failed to establish that his proposed claim appears meritorious.

As to the remaining factors, Claimant's proffered excuse for his delay amounts to an estoppel argument. Claimant blames the Facility's delay in processing requests for postage advances as the cause of his untimeliness. It is well-settled that defects in mailing by an inmate can result, upon proper proof, in an estoppel if the State is the cause of the delay. (Wattley v State of New York, 146 Misc 2d 968). Here, the ninety-day statutory period to comply with CCA 10 and 11 would have expired, at the latest, on July 11, 2002.[2] Claimant avers that he deposited legal mail containing this claim with the Facility for processing on May 30, 2002. The Facility returned his request to him on June 7, 2002 advising that due to a negative balance in his inmate account that he would need to establish the legal necessity of such mailing. Claimant resubmitted his request on that same date.[3] The Facility denied his request for a second time on June 19, 2002, but Claimant did not receive that notice until June 28, 2002 because he had been transferred in the interim to Mohawk Correctional Facility.

In this Court's view, Claimant has failed to set forth sufficient proof warranting the application of estoppel in this instance. First, Claimant has failed to explain his own delays, such as the time between the alleged incidents (at the earliest March 19, 2002 and at the latest April 11, 2002), until his first attempt at mailing on May 30, 2002, at a minimum 7 weeks later and, at the most, 10 weeks after accrual. Second, despite Claimant's assertions that he submitted proper legal authority to Facility personnel substantiating his need to meet the deadlines of CCA 10 and 11, he submits no proof that he in fact did so. In any event, the State has submitted DOCS Directive 4421 and 7 NYCRR 721.3 (a) (3) (iv) and (vi) which set forth the procedures for the handling of outgoing legal mail when an inmate does not have a sufficient balance remaining for his weekly free postage. There is nothing in this record indicating that Facility personnel did not follow said procedures. In sum, it was incumbent on Claimant to allow enough time for encountering trouble in processing his legal mail knowing full well the intricacies of the prison mail system and likely aware of his low or negative account balance. In this Court's view, this sequence of events is a good demonstration of the wisdom behind the adage "leave time for trouble". (Siegel, NY Prac § 33, at 40 [3d ed]). The State cannot be held accountable as long as it follows its own rules and regulations in processing an inmate's legal mail. To rule otherwise would impose an unreasonable burden on prison officials of constantly monitoring the urgency of inmate requests in relation to legal time periods. Consequently, the Court finds that Claimant has failed to submit sufficient proof warranting the application of estoppel against the State in this instance. Accordingly, the Court weighs this factor against Claimant.

The next three factors of notice of the essential facts, opportunity to investigate the circumstances underlying the claim, and resulting substantial prejudice, if any, to the State are typically discussed together, since they involve analogous considerations. The State argues that it had neither notice nor an opportunity to investigate. The State concedes it was aware that Claimant had filed grievances relating to this orientation program, but represents that they related to the State's purported failure to issue a certificate of completion and failure to provide Claimant with certain physical accommodations in the program. While the State argues that it was deprived of an opportunity to investigate within the statutory time period, it all but concedes that witnesses and records are still available. (Affirmation of Carol A. Cocchiola, AAG, ¶ 7). The Court finds that due to the lack of notice and opportunity to investigate these two factors weigh against Claimant, while the lack of substantial prejudice favors Claimant.

Finally, Claimant asserts he has no alternate remedy. To the contrary, the State argues that Claimant could have pursued this matter through the Facility's inmate grievance program and then an Article 78 proceeding in Supreme Court. Although there is no prerequisite that a claimant must exhaust his administrative remedies prior to commencing suit in the Court of Claims in any action other than an inmate bailment claim,[4] that does not exclude consideration of such administrative remedies in relation to this factor. Claimant's papers fail to indicate whether he attempted to institute an inmate grievance.[5] The Court finds this factor weighs against Claimant.

Accordingly, upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that five of the six statutory factors, including the all-important issue of merit, weigh against Claimant's motion for permission to late file.

In view of the foregoing, IT IS ORDERED that Claimant's motion for permission to file a late claim, Motion No. M-65605, is DENIED.

November 8, 2002
Binghamton, New York

Judge of the Court of Claims

[1]Claimant lists the dates of this deprivation as March 19, 21, 22, 26 & 28 and April 1, 3, 5, 9, & 11, 2002.
[2]Based upon Claimant's last listed date that he was allegedly deprived of recreation as April 11, 2002.
[3]The State's memorandum actually refers to 6 legal mail parcels. At best, only 2 of those parcels could relate to this matter, one package to the Clerk of the Court and one to the Attorney General's office.
[4](CCA 10 [9]; Fullwood v State of New York, Ct Cl, November 14, 2001, Corbett, Jr., J., Claim No. 103204, Motion No. M-63915 [UID No. 2001-005-541]). Unreported decisions from the Court of Claims are available via the Internet at
[5]Claimant cryptically states that his "agents" never pursued an inmate grievance.