New York State Court of Claims

New York State Court of Claims

PENA v. THE STATE OF NEW YORK, #2002-032-092, , Motion No. M-66743


Motion for permission to late file is granted. Trying to resolve a dispute through the internal grievance procedure of a correctional facility presents an acceptable excuse for delay.

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

Signature date:
September 18, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


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) motion (DeHart v State of New York, 92 Misc 2d 631
[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[6]).
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 York , 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.

September 18, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on movant's motion for permission to file a late claim:

1. Motion With Supporting Affidavit of Jose Pena, pro se

2. Affirmation in Opposition of Glenn C. King, Esq., AAG

Filed papers: None