The primary focus of this proposed claim is an incident that occurred on May
22, 2002 at Southport Correctional Facility.
Claimant alleges that Correction Officer Coleman intentionally and within
earshot of several inmates intimated that Claimant was a snitch. As a result
Claimant asserts that he suffered various injuries as a result of that and other
allegedly related incidents. The proposed claim lists the theories of liability
as "[a]n intentional tort: Intentional infliction of emotional distress,
assault, endangerment and failure to protect, slander and fraud." (Proposed
Claim, ¶ 2).
As a threshold issue, the Court notes that it has jurisdiction to review and
determine this motion relative to any proposed intentional tort cause of action
since it was filed within one year from the date of accrual and any proposed
negligence cause of action since it was filed within three years from accrual.
(CPLR 215  & 214; CCA 10 ).
Turning to the substance of the motion, 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,
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).
Claimant's papers recite several incidents which form the bases for his
theories of liability. The incidents include the originating event when
Claimant alleges that Correction Officer Coleman said within hearing distance of
other inmates "[w]hen are you going to write me another informative letter",
thus labeling him an informant. (Claimant's Affidavit, ¶ 9). Claimant
also sets forth an assault theory of liability based upon: (1) being "tortured
by the other 20 inmates" when "his food was spat in - feces was mixed into his
food"; (2) Correction Officer Coleman spitting on a picture of Claimant and his
deceased wife; and (3) the effect on his own body when his chest pains and
hypertension increased due to the stress of the incident. (Proposed Claim,
¶ ¶ 19, 20, & 26). Claimant asserts that Correction Officer
Coleman knew of his pre-existing medical conditions and how the specter of being
considered a snitch would exacerbate his poor health. Claimant also alleges a
"failure to protect" cause of action because of the other correction officers
failure to intercede and protect him from Correction Officer Coleman.
Despite Claimant's attempts to allege theories of liability of assault, fraud,
slander, endangerment and failure to protect, this Court finds that Claimant's
recitation of these incidents are simply his purported evidence underlying his
true theory of liability, namely that the State intentionally inflicted
emotional distress as a result of these acts and/or omissions. Even if all
these allegations were true, the State is correct that there is no cognizable
cause of action for intentional infliction of emotional distress against the
State due to public policy concerns. (Brown v State of New York, 125
AD2d 750, lv dismissed 70 NY2d 747; Augat v State of New York, 244
AD2d 835, lv denied 91 NY2d 814; La Belle v County of St.
Lawrence, 85 AD2d 759). As such, the proposed claim does not appear
With respect to the remaining factors, Claimant lists a litany of excuses for
his delay in filing including his own medical illness, his status as a
layperson, delays by both Prisoners' Legal Services and Legal Aid Society, as
well as "complicity" amongst these various agencies. None of Claimant's excuses
are accepted. Ignorance of the law is not an acceptable excuse (Innis v
State of New York, 92 AD2d 606, affd 60 NY2d 654); medical excuses
must be accompanied by a physician's affidavit in order to substantiate a claim
of medical incapacity through the statutory period (Cabral v State of New
York, 149 AD2d 453); and inaction by an attorney or, stated another way, law
office failure is not a reasonable excuse for delay. (Nyberg v State of New
York, 154 Misc 2d 199; Sessa v State of New York, 88 Misc 2d 454,
458, affd 63 AD2d 334, affd 47 NY2d 976). Accordingly, this
factor weighs against Claimant.
The next three factors consist of notice of the essential facts, opportunity to
investigate the claim, and substantial prejudice to the State. Here, Claimant
has submitted exhibits that demonstrate that he filed a grievance regarding this
specific May 22, 2002 incident which was investigated and found to be unfounded
by the Facility. (Claimant's Exhibits). This Court finds that the State did
have notice and opportunity to investigate this matter and, as such, the State
would not suffer substantial prejudice were the requested relief granted.
Accordingly, these three factors weigh in Claimant's favor.
With respect to the final factor, there does not appear to be any other
alternate remedy available to Claimant and, as such, this factor would weigh in
Accordingly, upon reviewing and balancing all of the factors enumerated in CCA
10 (6), the Court finds that three of the six statutory factors, including the
all-important issue of merit, weigh against Claimant's motion for permission to
In view of the foregoing, IT IS ORDERED that Claimant's motion for permission
to file a late claim, Motion No. M-65968, is DENIED.