New York State Court of Claims

New York State Court of Claims

PULLIAM v. THE STATE OF NEW YORK, #2002-019-590, Claim No. NONE, Motion No. M-65968


Claimant's motion for permission to file late claim based upon intentional infliction of emotional distress 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: James E. Shoemaker, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
December 9, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, seeks 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-65968, undated, and filed October 25, 2002.
  2. Affidavit of Dwyane Pulliam, in support of motion, sworn to October 7, 2002.
  3. Proposed Claim, sworn to October 7, 2002, with attachments.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated November 5, 2002, and filed November 7, 2002.
The primary focus of this proposed claim is an incident that occurred on May 22, 2002 at Southport Correctional Facility.[1] 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 [3] & 214; CCA 10 [6]).

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,
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).

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 meritorious.

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 his favor.

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 late file.

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.

December 9, 2002
Binghamton, New York

Judge of the Court of Claims

[1]The Court notes that it has done its best to decipher Claimant's papers which were single-spaced and handwritten and, generously described, difficult to read. Claimant is apprised of CPLR 2101 (a) which requires, among other things, that the "writing shall be legible" in all papers served or filed. (See also 22 NYCRR 206.5).