New York State Court of Claims

New York State Court of Claims

VENTIMIGLIA v. THE STATE OF NEW YORK, #2003-009-22, Claim No. 105994, Motion Nos. M-65858, CM-66124


Defendant's motion to dismiss the claim based upon untimely service was granted; claimant's cross-motion for permission to serve and file a late claim was granted.

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:
BY: Stuart A. Schlesinger, Esq.,Of Counsel.
Defendant's attorney:
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
June 17, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has brought a motion (Motion No. M-65858) seeking an order dismissing the claim based upon untimely service. Claimant has responded with a cross-motion (Cross-Motion No. CM-66124) seeking, in the alternative, late claim relief under Court of Claims Act, § 10(6), or an order deeming as a claim a previously served notice of intention to file a claim pursuant to Court of Claims Act, § 10(8)(a).

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation, with Exhibits (M-65858) 1,2

Notice of Cross-Motion, Affidavit of Stuart A. Schlesinger, Esq., Affidavit of Sebastian Ventimiglia, with Exhibits (CM-66124) 3,4,5

Reply and Opposition Affirmation, with Exhibits, including Affidavits from Craig Gummerson and John Glasheen (M-65858, CM-66124) 6

Reply Affidavit, with Exhibit (CM-66124) 7

In this claim, claimant seeks to recover damages for personal injuries sustained by him when he was slashed in the face by another inmate on May 4, 2000, while he was incarcerated at Auburn Correctional Facility. Claimant alleges that the State was negligent in failing to provide adequate supervision and security.

Pursuant to Court of Claims Act, § 10(3), a claim alleging acts of negligence against the State must be served on the Attorney General and filed with the Clerk of the Court of Claims within 90 days of accrual, unless a notice of intention to file a claim is served upon the Attorney General within such 90 day period. If a notice of intention is served upon the Attorney General within the 90 days following accrual, the claim must then be served and filed within two years from the date of accrual.

In this matter, defendant acknowledges that a notice of intention was timely and properly served upon the Attorney General on July 7, 2000, well within the 90 day period following the incident which allegedly occurred on May 4, 2000. A claim was subsequently filed with the Clerk of the Court of Claims on April 30, 2002, within the two year period authorized by § 10(3). Service of the claim, however, was not effected until August 21, 2002, as evidenced by the date stamped on the copy of the claim which was served on the Attorney General.[1] It is apparent, and uncontested by claimant, that service of the claim was not completed within the two years following accrual of the claim as required by § 10(3).

The service and filing requirements of the Court of Claims Act are jurisdictional prerequisites to the institution and maintenance of a claim against the State and therefore they must be strictly construed (Finnerty v New York State Thruway Authority, 75 NY2d 721; Byrne v State of New York, 104 AD2d 782, lv denied 64 NY2d 607). As a result, this Court does not have the authority to cure or overlook defects in the time and/or manner of service and filing. Accordingly, this claim must be dismissed.

Apparently realizing that the claim was not timely served, claimant brought a cross-motion seeking permission to serve and file a late claim, or in the alternative treating his previously served notice of intention as the claim in this matter. The Court will first address claimant's application for late claim relief pursuant to Court of Claims Act, § 10(6).

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth therein are: (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117).

With regard to excuse, claimant's attorney acknowledges that once the claim had been timely filed with the Clerk of the Court, proper arrangements for the timely service of the claim upon the Attorney General were not completed with their process server. Law office failure, however, cannot be considered a reasonable excuse for the failure to properly and timely serve a claim (Nyberg v State of New York, 154 Misc 2d 199).

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. In this claim, it is undisputed that the Attorney General was properly served with a notice of intention to file a claim within 90 days of the alleged incident which forms the basis of this claim. The Court has reviewed this notice of intention (Exhibit A to Items 1, 2) and finds that claimant provided the State with sufficient notice as to the time when and place where the alleged assault occurred so as to enable the State to make a prompt and full investigation of the potential claim. Indeed, claimant has submitted documentation (see Exhibit A to Items 3, 4, 5) confirming that an investigation was undertaken by prison officials immediately after this incident. Based upon its finding that the State was provided with actual and sufficient notice that a potential claim existed, and that it did in fact conduct an investigation of the incident, the Court finds that the State will not be prejudiced whatsoever should this application be granted.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).

Defendant contends that this claim lacks any appearance of potential merit, and that claimant will not be able to establish any basis of liability against the State in this inmate-on-inmate assault. However, in his affidavit in support of this application (see Item 5), claimant contends that prison officials were aware that the prisoner who attacked him was a member of the "Bloods" gang within the facility, whose members are prone to violence. Additionally, documentation submitted herein establishes that claimant apparently had been assisting the Department of Correctional Services in criminal investigations within the facility, which at a minimum raises the issue of whether claimant was a potential target. Finally, claimant has also alleged that the State, on the day of the incident, did not properly utilize the Body Orifice Scanning System (B.O.S.S.) chair when allowing inmates to enter the "Keep Lock" recreation yard where the assault occurred.

While defendant has strongly contested each of these allegations in its reply affirmation (see Item 6), the Court's role on a late claim application is not to decide factual issues, but merely to determine whether the claim has the appearance of merit (Matter of Santana v New York State Thruway Authority, supra). Accordingly, based upon the papers submitted herein, the Court finds, for purposes of this application, that claimant has asserted a meritorious claim against the State.

It does not appear that claimant has any other remedy.

The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981) and none of the factors can require denial as a matter of law.

Therefore, even though Claim No. 105994 must be dismissed upon jurisdictional grounds, the Court finds that claimant has clearly made a showing sufficient for this Court to permit the service and filing of a late claim seeking the identical relief sought therein. Based on this determination, there is no need for the Court to address claimant's alternative request for relief (i.e., deeming the previously served notice of intention as the claim), which has been rendered moot.

Accordingly, it is

ORDERED, that Motion No. M-65858 is hereby GRANTED; and Claim No. 105994 is hereby DISMISSED; and it is further

ORDERED, that Cross-Motion No. CM-66124 is also GRANTED, and claimant is directed to serve his claim upon the Attorney General and to file the claim with the Chief Clerk of the Court of Claims within 45 days from the date of filing of this decision and order in the Clerk's office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.

June 17, 2003
Syracuse, New York

Judge of the Court of Claims

[1] In the papers before the Court on this motion, all parties make reference to August 21, 2002, as the date of service of this claim, the date which is stamped on the copy of the claim served on the Attorney General. The affidavit of service filed with the Clerk of the Court, however, states that the date of service was August 20, 2002. In either event, it is undisputed that the claim was not timely served.