New York State Court of Claims

New York State Court of Claims

BENYO v. THE STATE OF NEW YORK, #2002-031-060, , Motion No. M-65815


Claimant, allegedly injured during assault by correction officer, failed to demonstrate a 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: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 20, 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 September 6, 2002;
2. Claimant's unsworn affidavit, filed September 6 , 2002, with attached proposed claim;
3. Affidavit of Wendy E. Morcio, Esq., sworn to October 25, 2002, with attached exhibits; This is the motion of Mark Benyo for permission to file a late claim pursuant to § 10(6) of the Court of Claims Act (the"CCA"). In paragraph six of his proposed claim, Mr. Benyo alleges that on April 27, 2002, while he was returning from keeplock recreation, Correction Officer Jennifer Robinson assaulted him when, during a routine pat frisk, she "grabbed Claimants (sic) hair . . . and slammed Claimants (sic) face into the gate . . ." As a result of this assault, Claimant alleges that he suffered the loss of a tooth, a split lip, and a laceration on the inside of his mouth.

Mr. Benyo's application, however, consists of an unsworn affidavit and an unverified proposed claim. The facts alleged by Claimant in these documents, therefore, have no probative value, and may not be considered (cf. Duffy v Universal Maintenance Corp., 227 AD2d 238; Adams v Alexander Dept. Stores, 226 AD2d 130). For this reason alone, Claimant's application must be denied.

Nevertheless, I also find that, even had Claimant's proof been in admissible form, the application must still be denied as Claimant has failed to demonstrate that the proposed claim has merit.

Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Witko v State of New York, 212 AD2d 889; Nyberg v State of New York, 154 Misc 2d 199). It would be of no benefit 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 the granting of 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). Furthermore, when there are facts before the court contradicting Claimant's version of the events, as is the case here, it is incumbent upon the court to determine the credibility of the proposed claim in determining whether the claim has the appearance of merit.

Claimant has set forth in his proposed claim that he was assaulted by a female correction officer and that this assault was witnessed by four other correction officers. Claimant has submitted no corroborating evidence of any sort. In its opposition to this motion, Defendant has submitted a copy of Claimant's medical records (exhibit A). These documents support Defendant's contention that Claimant did not seek medical treatment for injuries at or about the time of the alleged assault. Defendant also argues that exhibit B, copies of Claimant's misbehavior reports, indicate that, although an incident involving Claimant and Correction Officer Robinson did occur on April 27, 2002, no force was used during that incident. Finally, Defendant has submitted, as exhibit D, a copy of the inspector general's report which determined that Claimant's charges relating to the assault were unfounded and that each of the identified guards denied that force was used during the incident.

I find that Claimant has failed to demonstrate that his claim has the appearance of merit. Accordingly, it is

ORDERED, that Claimant's motion is denied.

November 20, 2002
Rochester, New York

Judge of the Court of Claims