New York State Court of Claims

New York State Court of Claims

GORDON v. THE STATE OF NEW YORK, #2002-031-031, , Motion No. M-65108


Claimant, allegedly injured during an assault by correction officers, failed to demonstrate either a reasonable excuse for delay or meritorious claim. His motion 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:
New York State Attorney General
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 14, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 3, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed April 26, 2002;
2. Claimant's affidavit, sworn to April 23, 2002, with attached exhibits;
3. Affirmation of James L. Gelormini, Esq., filed May 22, 2002, with attached exhibits; This is the motion of Clifton Gordon for permission to file a late claim pursuant to §10(6) of the Court of Claims Act (the"CCA"). In his proposed claim, Mr. Gordon alleges that, on September 15, 2001, while undergoing a routine pat frisk, he was brutally assaulted by four correction officers at Attica Correctional Facility. He alleges that this assault was without warning or provocation of any kind. As a result of the assault, he had to undergo two dental surgeries and has suffered a permanent speech impairment.

Defendant, in its opposition to this motion, has attached to its papers as Exhibits 1 and 2 the affidavits of Correction Officer David Sojda and Correction Sergeant Raymond Szczepanowski, both of whom have firsthand knowledge of the incident and provide a very different version of the events. Both Officer Sojda and Sergeant Szczepanowski indicate that, though an incident did occur, it was initiated by Claimant's unprovoked attack upon Officer Sojda and that the ensuing use of force upon Claimant was no more than was reasonably necessary to subdue him.

Defendant also asserts that the motion should be denied as the proposed claim is not verified and the facts alleged therein are not in admissible form and may not be considered. While I am troubled by Claimant's failure to verify the proposed claim, I note that his supporting affidavit, to which the proposed claim is annexed, is properly notarized. I will address the motion on its merits.

Subdivision 6 of §10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court, in its discretion, balances these factors in making its determination. (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

As for his reason for the delay, Claimant merely states that he is not a lawyer, that he did not have professional help, and that he spent most of the time prior to filing the motion in the Special Housing Unit. These are not justifiable excuses for failing to file a timely claim or to serve a timely notice of intention to file claim upon the Attorney General. I find that this factor weighs in Defendant's favor. The absence of an excuse, however, is only one of the factors considered by the Court in reviewing a §10(6) application and does not necessarily preclude the relief sought here (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

Claimant alleges, and Defendant does not dispute, that no other remedies are available to him. Given the nature of the alleged claim and the fact that Claimant is an inmate, Claimant does not appear to have any other adequate avenue of redress for his injuries arising from the incident.

The next three factors covering notice, opportunity to investigate, and prejudice are closely related and may be considered together (Brewer v State of New York, 176 Misc 2d 337, 342). Claimant alleges that Defendant had notice of and in fact did investigate the incident. Defendant argues that, even though it knew about the incident, it was not aware that litigation might ensue. However, Claimant filed a grievance concerning the incident and reported the matter to the Inspector General, as well. I find that Defendant did have notice of and a chance to investigate the incident. Incidents such as the one alleged in the claim, which occur within the confines of a State correctional facility, are well documented and almost immediately investigated by correctional facility personnel. For this reason, I also find that Defendant would not be substantially prejudiced if the claim were allowed to proceed.

Merit is often considered the most important factor in determining a late file motion, as it would be pointless to permit a claim without the appearance of merit to be filed even if the other factors enumerated in Court of Claims Act § 10(6) supported granting the motion (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729; Rosenhack v State of New York, 112 Misc 2d 967). Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous or legally defective and, upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Claimant has set forth in his proposed claim that he was brutally assaulted by four correction officers. He maintains this assault was unprovoked and not a result of any provocation on his part. Though much of what occurred that day is in dispute, Defendant does not dispute that the incident occurred, that force was used against Claimant, or that Claimant was seriously injured. Whether the use of force was justified and, if so, whether the amount of force used was reasonable, are questions of fact that must be resolved at a later time. While the standard referred to above for establishing merit in a late claim application clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a Claimant to overcome all objections, nor does it suggest that the Court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case (Matter of Santana v New York State Thruway Auth., supra, at 11-12 ).

I find that, for the purposes of this application, Claimant has met the threshold for establishing that his claim has the appearance of merit. Of course, a greater burden rests upon Claimant to establish the merit of his claim at trial.

Upon reviewing and balancing all of the factors enumerated in CCA §10(6), I find that they weigh in favor of granting Claimant's motion for permission to file a late claim. Claimant is, therefore, directed to file and serve a claim identical to the proposed claim submitted in support of this motion; and to do so in conformance with the requirements of CCA §§10, 11, and 11-a within sixty (60) days after this order is filed.

August 14, 2002
Rochester, New York

Judge of the Court of Claims