New York State Court of Claims

New York State Court of Claims

WRIGHT v. THE STATE OF NEW YORK, #2002-019-588, Claim No. NONE, Motion No. M-65908


Claimant's motion for permission to file a late claim for alleged use of excessive force by correction officers is 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:
Defendant's attorney:
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
November 27, 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. "MOTION FOR PERMISSION TO FILE A LATE CLAIM", Motion No. M-65908, of Jermaine Wright, dated September 27, 2002, and filed October 2, 2002.
  1. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated October 28, 2002, and filed October 30, 2002, with attached exhibits.
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 claim.

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 [6]).

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

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.

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. 2000-028-101530]).[2] 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 New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 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 Claimant's favor.

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 Claimant's favor.

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.

November 27, 2002
Binghamton, New York

Judge of the Court of Claims

[1]The Court is treating Claimant's "Notice of Intention to File a Late Claim" attached to his motion papers as his proposed claim.

[2]Unreported decisions from the Court of Claims are available via the Internet at