The proposed claim alleges Claimant was assaulted by several correction
officers while incarcerated at Southport Correctional Facility (hereinafter
"Southport") on June 3, 2002 at approximately 8:45 a.m. Claimant failed to
serve a notice of intention or file and serve a claim within 90 days thereafter
pursuant to CCA 10 and 11 and, as such, seeks permission to file a late
Initially, the Court notes that it does have jurisdiction to review and
determine this motion, since this motion was filed within the one year time
period applicable to intentional torts as prescribed by Article 2 of the CPLR.
(CCA 10 ).
The substantive factors that 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
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.
Whether the proposed claim appears meritorious has been characterized as 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, Claimant must establish his 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). "While this standard
clearly places a heavier burden on a claimant who has filed late than upon one
whose claim is timely, it does not, and should not, require him to definitively
establish the merits of his claim, or overcome all legal objections thereto...."
(Id. at 11-12).
Here, Claimant alleges in very simple terms that he was assaulted by several
Southport correction officers on June 3, 2002. In this Court's view, Claimant's
factual allegations, although not lengthy in nature, are sufficient to set forth
that he is seeking damages for an unjustified use of force by correction
officers. In short, Claimant has alleged the assault was intentional and
without justification. In response, the State has not addressed the merits of
this claim other than to focus on what it describes as the minor nature of
Claimant's injuries and a professed confusion as to what incident Claimant is
describing in his papers. With respect to the allegedly minor nature of
Claimant's injuries, there is absolutely no requirement that a claimant
establish some requisite degree of his injuries in order to proceed at this
juncture. (Baker v State of New York
, Ct Cl, December 21, 2000, Sise,
J., Claim No. None, Motion No. M-62407 [UID No.
The State also asserts
that there is a question as to whether the event described by Claimant involving
the use of batons is the same event for which it did locate various reports
including a Misbehavior Report and a Use of Force Report arising from a June 3,
2002 incident. (State's Exhibits A & C). The Court finds no ambiguity in
Claimant's description of the underlying event. Claimant's description of the
alleged event is not limited to the use of batons but also references punching,
scratching and twisting. (Proposed Claim, ¶ 3A). In fact, Claimant lists
the date and time of the incident (June 3, 2002 at 8:45 a.m.) exactly as they
appear on the State's Exhibits. (Proposed Claim, ¶ 5; State's Exhibits A,
B, & C). Clearly, the parties are discussing the same incident. In any
event, the State has not denied the use of force in some measure but appears to
be arguing that such use of force was justified. However, the Court must accept
Claimant's factual allegations as true for this motion. (Sessa v State of
, 88 Misc 2d 454, 458, affd
63 AD2d 334, affd
976). Consequently, the Court finds that the proposed claim appears meritorious
within the meaning of CCA 10 (6). Thus, the factor of merit weighs in
With respect to the remaining factors, Claimant argues that his delay is
excusable because he was in transit between correctional facilities for the
purpose of attending unrelated court proceedings. Incarceration and all the
normal conditions thereof have been rejected as an excusable delay. (Hall v
State of New York, 85 AD2d 835; Plate v State of New York, 92 Misc 2d
1033, 1037-1038; Wallace v State of New York, Ct Cl, June 27, 2000, Read,
J.P., Claim No. None, Motion No. M-61368 [UID No. 2000-001-030]). This factor
weighs against Claimant.
Notice of the essential facts, opportunity to investigate and lack of
substantial prejudice comprise the next three factors. Claimant argues that the
State had notice from his requests to be moved out of the cell block where he
was housed due to threats of physical harm, presumably by the very same
correction officers who allegedly assaulted him. The Court finds that the State
had actual notice and an opportunity to investigate based upon the documentation
submitted by the State including the Misbehavior Report and Use of Force Report.
With respect to substantial prejudice, the State does not argue that it cannot
now prepare and proceed to trial, nor does it argue that the delay in filing has
generated an unfair advantage to the Claimant by making witnesses and documents
unavailable. Accordingly, the Court finds that these three factors weigh in
The final factor is the availability of any alternate remedy of which Claimant
asserts he has none. The State argues that Claimant could file criminal charges
against his alleged attackers. A similar argument made in connection with the
possible civil recovery provided victims from the Crime Victims Compensation
Board has previously been rejected. (Roman v State of New York, Ct Cl,
August 14, 2000, Bell, J., Claim No. None, Motion No. M-61933 [UID No.
2000-007-045]. As such, this factor weighs in favor of Claimant.
Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the
Court finds that five of the six factors, including the all-important factor of
merit, weigh in favor of Claimant's request for permission to file a late claim
pursuant to CCA 10 (6).
In view of the foregoing, IT IS ORDERED that Claimant's motion for permission
to permit the late filing and service of a claim, Motion No. M-65908, is
GRANTED. Claimant shall file a claim in the Office of the Clerk and serve a
copy of the claim upon the attorney general within sixty (60) days from the date
of filing of this Decision & Order in the Office of the Clerk of this Court.
The service and filing of the claim shall be in conformity with all applicable
statutes and rules of the Court including CCA 10, 11 and 11-a.