Although movant has captioned his notice of motion "Motion for Permission to
File a Late Claim," the document annexed to that notice is captioned "Notice of
Intention to File Claim." In this document, movant alleges that on October 14,
2002, both he and his cellmate warned correction officers at Upstate
Correctional Facility that they were having disputes which could easily lead to
a fight, and both requested that they be separated. They were briefly separated
but then, according to movant, on October 15, 2002, they were again forced by
correction officers to occupy the same cell, and this time movant was attacked
by his cellmate.
A notice of intention to file a claim cannot be the subject of a §10(6)
v State of New York
, 92 Misc 2d
[Ct Cl 1977]), but the claimant's caption need not be controlling and the Court
will consider this to be a motion for permission to late file a claim (Court of
Claims Act §10).
In determining such a motion, the Court must consider, among
other relevant factors, the six factors set forth in the statute: 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 or serve a timely
claim or serve a timely notice of intention resulted in substantial prejudice to
the State; and 6) whether the claimant 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 because he first
pursued administrative remedies by filing a grievance to the correctional
facility and subsequently appealing that decision to the Commissioner of the
Department of Correctional Services (DOCS). A prison inmate's effort to resolve
a dispute by reliance on the institutional grievance procedure, rather than
immediately pursuing litigation by filing suit in this Court, has been
considered an acceptable excuse for delay (see
, Younis v State of New
, UID #2001-013-012, Motion No. M-63393, August 10, 2001, Patti, J,
citing to Arponte v State of New York
, Ct Cl Motion No. M-36850,
April 16, 1987, E. Margolis, J.; Bencivenga v State of New York
, Ct Cl
March 7, 1979, Silverman, J.)
Because of the grievance that was filed with
DOCS, the State had notice of the essential facts constituting the claim; its
opportunity to investigate the circumstances underlying the claim was not
impeded; and thus, permitting the filing of an untimely claim would not result
in substantial prejudice to the State.
Movant has no alternative remedy.
Finally, if movant's allegations are true, the proposed claim is not patently
groundless, frivolous, or legally defective, and there is reasonable cause to
believe that a valid cause of action exists (Matter of Santana v New York
State Thruway Auth.
, 92 Misc 2d 1).
Taking into account the six statutorily prescribed factors, the Court finds them
to weigh in favor of granting this motion for permission to file a late claim.
Movant is therefore directed to file and serve a claim identical to the proposed
claim, with the exception that its caption should be corrected and an ad damnum
clause should be inserted. The claim shall be filed and served in conformity
with the requirements of Court of Claims Act §§ 10, 11 and 11-a within
sixty (60) days after this order is filed.