New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2002-032-012, Claim No. N/A, Motion No. M-65604


Motion for permission to late file a claim is denied where movant's excuse for delay is unacceptable and where the proposed cause of action, asserting that prison officials wrongfully refused to facilitate discovery needed for a Federal lawsuit, is without merit.

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:
Isaiah Brown, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Glenn C. King, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
November 14, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Movant seeks an order pursuant to Court of Claims Act § 10 (6) permitting him to serve and file a late claim.
Movant alleges that beginning November 18, 1999 he repeatedly requested officials at Clinton Correctional Facility to provide him with "information," blank tapes, and the use of two tape recorders and that his requests were repeatedly, and wrongfully, denied. He alleges that he needed these items in order to conduct depositions of non-party witnesses in a civil action then pending in Federal court (identified as Docket No. 98-CV-3844, District Court for the Southern District of New York). Movant's allegations focus particularly on the actions of an employee, Donna J. Stiles, who denied his request on several occasions and later, after he had instituted a grievance, filed a misbehavior report against him. The final appeal of his institutional grievance was denied in March 2000 (Brown Affidavit, Exhibit B). In the meantime, in February 2000, discovery in the Federal action was closed, and his effort to have discovery reopened was denied in April 2000.
Although worded in a number of different ways, the causes of action set forth in the proposed claim are based on alleged negligence or on deprivation of movant's constitutional rights (Brown Affidavit, Exhibit A). This motion to late file was brought less than three years after the earliest date on which the proposed claim could have accrued, and a like action against a citizen would not be barred by the applicable statute of limitations (CPLR 214).
In determining a motion for permission to file a late claim, the Court must consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: 1) whether the delay in filing the claim was excusable; 2) whether the State had notice of the essential facts constituting the claim; 3) whether the State had an opportunity to investigate the circumstances underlying the claim; 4) whether the claim appears to be meritorious; 5) whether the failure to file and serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and 6) whether the movant has another available remedy. The Court in the exercise of its discretion balances these factors. The presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).
Movant failed to timely initiate an action in this court, he states, because he believed that his claims against the State could be raised in Federal court as "pendent or supplemental" claims to that action (Brown Affidavit, ¶ 8). He states that he did not learn that this course of action was mistaken until July 2002 when he received the State's answer to his Federal action and learned of a dispositive defense raised by the State (discussed below). The instant motion was initiated in August 2002.

As a general proposition, ignorance of the law cannot provide an acceptable excuse for delay (
see, e.g., Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854 [mistake as to proper entity to sue]; Sevillia v State of New York, 91 AD2d 792 [claimant initially hired out-of-state attorney who did not take proper action]; Donovan v New York State Teachers' Retirement System, 87 AD2d 664 [mistakenly commencing action in Supreme Court]; Royal Insurance Co. of Am. v State of New York, 149 Misc 2d 531 [proceeding in improper forum]). Movant cites, however, to Brewer v State of New York (176 Misc 2d 337), in which Judge Francis T. Collins held that a bankruptcy trustee's failure to commence a timely claim in this Court was excusable because he had reasonably believed that jurisdiction over the cause of action lay with the Federal Bankruptcy Court pursuant to a duly enacted Federal statute. When the State raised a novel defense based on the 11th Amendment of the United States Constitution in the Bankruptcy Court proceeding, asserting that a certain provision of the U.S. Bankruptcy Code was unconstitutional, the trustee sought to late file an action in this Court in the event that the State's defense was successful. At the time of Judge Collin's decision, the issue of whether the Bankruptcy Code provision was unconstitutional was still working its way through the Federal appellate courts. That was, needless to say, a highly unusual situation.
The circumstances here are quite different and no unanticipated, novel argument of law is involved. In response to movant's Federal claims based on the actions of correction officials in denying his requests outlined above, the State raised a defense based on Correction Law § 24.[1]
It is well-established that this statute bars Federal courts from entertaining any pendent State law claims brought against prison officials for intentional tort, negligence and medical malpractice committed in the course of their State employment (Baker v Coughlin, 77 F3d 12 [2d Cir1996]). Unlike the circumstances in Brewer, movant's belief that he could bring these claims in Federal court was not reasonable. Such belief was, in fact, nothing more than ignorance of established law. Movant therefore has failed to establish an acceptable excuse for failing to comply with the time limitations of the Court of Claims Act.
The Court accepts, and defense counsel does not dispute, that the State had ample and adequate notice of movant's dissatisfaction with the denial of his several requests. Further, an investigation of the matter was conducted in connection with his institutional grievance and thus the State would not be prejudiced by the passage of time if the requested relief were granted. It is also undisputed, for the reasons discussed above, that there is no remedy available to movant other than an action against the State in this Court.

The State's principal opposition to this motion rests on its argument that the proposed claim lacks merit. All other factors being equal, untimely claims should be permitted unless they are patently groundless, frivolous, or legally defective and there is no reasonable cause to believe that a valid cause of action exists (
Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). On the other hand, permitting a defective claim to be filed, even if the other factors in Court of Claims Act § 10 (6) support granting the motion, would be meaningless and futile (Prusack v State of New York, 117 AD2d 729; Rosenhack v State of New York, 112 Misc 2d 967). In support of the meritoriousness of his claim, movant states only, "A review of said claim will reveal that claimant has a meritorious cause of action. Therefore, claimant has satisfied the most important requirement for filing a late claim" (Brown Affidavit, § 7).
Perusal of the proposed claim does not lead the Court to the same conclusion. As counsel for the State has noted, movant has pointed to no authority that requires the State to provide inmates, simply at their request, with blank tapes or access to tape recorders so that they may conduct depositions. Once a prisoner, or any litigant, has commenced a civil lawsuit, their requests and disputes regarding the conduct of discovery in that action are properly made only to the court in which the suit is pending (
see, e.g., Gittens v State of New York, 175 AD2d 530 [directing that the State need not supply photocopies of certain records at State expense]; Sebastiano v State of New York, 112 Misc 2d 1027 [declining to issue subpoenas for witnesses who could be deposed by pro se inmate]). This is equally the case where a State inmate has instituted a civil suit in Federal court (see, e.g., Espinal v Coughlin, 1999 WL 1063186 [S.D.N.Y. 1999] [denying pro se inmate's request to depose defendants in favor of written interrogatories]; Collado v Coughlin, 1995 WL 598968 [S.D.N.Y. 1995] [permitting pro se inmate petitioner to use interrogatories rather than depositions otherwise required by local rule]; West v City of New York, 1990 WL 80053 [S.D.N.Y. 1990] [granting pro se inmate's request to take non-stenographic deposition]; Ronson v Commissioner of Correction for State of N.Y., 106 F.R.D. 253 [S.D.N.Y. 1985] [denying pro se inmate's request to depose a non-party witness]). An illustration of this can be found in a proceeding related to movant's own Federal court action (Brown v City of New York, 1999 WL 675977 [S.D.N.Y. 1999] [rulings on document discovery demands]).[2]
This settled principle of law, that the court in which a matter is pending should hear related discovery disputes, was the basis for the facility's refusal to comply with movant's requests. This is evident by the decision in which the appeal of his institutional grievance was denied. In that decision, the Central Office Review Committee of the Department of Correctional Services advised movant to "address any similar requests directly to the court" (Brown Affidavit, Exhibit B). Consequently, it was not improper for DOCS employees and officials to deny movant's request for equipment needed to take depositions when that request was not made to and sanctioned by the court having jurisdiction of the action to which the depositions related. If that court had granted permission for the depositions to be taken, and allowed them to be taken by a recording device, prison officials would undoubtedly have complied with any reasonable request to see that they were accomplished. It is clear, therefore, that the State's refusal of movant's requests was not negligent in any respect and did not deprive movant of his right to access to the courts. The proposed claim, therefore, lacks merit.

Consideration of the factors set forth in Court of Claims Act § 10 (6) indicate that movant is not entitled to the requested relief, and the motion is denied.

November 14, 2002
Albany, New York

Judge of the Court of Claims

The following papers were read on movant's motion for permission to file an untimely claim:
  1. Notice of Motion and Supporting Affidavit of Isaiah Brown, pro se, with annexed proposed claim and exhibit
  1. Affirmation in Opposition of Glenn C. King, AAG
Filed papers: None.

[1] Correction Law § 24 (2) provides:
"Any claim for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties of any officer or employee of the department shall be brought and maintained in the court of claims as a claim against the State."
[2] Another published decision resulting from the action designated Docket No. 98-CV-3844 can be found at 210 F Supp 2d 235. The action is described as being based on allegations that "the City of New York and numerous individuals, including a judge and police officials" violated movant's constitutional rights in connection with his 1997 arrest, prosecution, and conviction for rape and drug offenses.