New York State Court of Claims

New York State Court of Claims

BEROO v. THE STATE OF NEW YORK, #2003-009-42, Claim No. NONE, Motion No. M-66671


Claimant's motion 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:
Defendant's attorney:
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
August 27, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks permission to serve and file a late claim pursuant to Court of Claims Act, § 10(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support 1,2

Affirmation in Opposition, with Exhibit 3

Claimant's Reply 4

Notice of Motion, Proposed Notice of Intention to File Claim, Affidavit in Support, Proposed Claim 5,6,7,8

Supplemental Affirmation in Opposition, with Exhibit 9

Claimant's Reply, with Exhibits 10

Initially, defendant had opposed this motion on the basis that claimant had failed to submit a copy of his proposed claim to his moving papers (see Item 3). Claimant, however, requested and received an adjournment of his motion, and has since served and filed a proposed claim with his supplemental motion papers (see Item 8). Accordingly, the Court will consider this application on its merits.

In his proposed claim, claimant seeks damages for personal injuries suffered by him when he was allegedly assaulted by several State correction officers on January 30, 2002. This cause of action, alleging excessive use of force by correction officers, is an intentional tort, which is governed by the one year statute of limitations under CPLR § 215(3). Claimant's application for late claim relief, however, was not served and filed until April, 2003, and since the assault against claimant allegedly occurred on January 30, 2002, it was not made before the statute of limitations for intentional torts had expired. Because his application was not made prior to the time that the statute of limitations had expired for this cause of action, this Court does not have jurisdiction to grant late claim relief under § 10(6) of the Court of Claims Act. An application for late claim relief can only be considered if it is made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." (Court of Claims Act, § 10[6]).

Claimant, however, has also asserted a cause of action in his proposed claim for malicious prosecution, based upon criminal proceedings which were instituted against claimant following the incident on January 30, 2002, and his acquittal of all charges on November 20, 2002, following a jury trial. Since claimant's application for permission to serve and file a late claim for malicious prosecution has been made within one year of the termination of criminal proceedings against him, it has been timely made and must be considered on its merits.

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 asserts that his failure to properly and timely file and serve his claim was due to his lack of knowledge of the time limitations set forth in the Court of Claims Act, compounded by his incarceration. However, it is well settled that ignorance of the law does not provide an acceptable excuse for delay (Matter of E.K. v State of New York, 235 AD2d 540; Sevillia v State of New York, 91 AD2d 792). Furthermore, the fact that a claimant is incarcerated is not, in and of itself, sufficient to establish an acceptable excuse (see, Plate v State of New York, 92 Misc 2d 1033).

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. Claimant asserts that the State had essential notice of a potential claim due to the fact that certain State employees were present when the incident occurred on January 30, 2002, and this incident was subsequently investigated by the State. As previously determined herein, however, this late claim application is limited solely to the malicious prosecution cause of action, and not to the cause of action alleging excessive force. There is no indication in any of the papers before the Court that the State had any notice, or any opportunity to investigate the facts surrounding the malicious prosecution cause of action, until this application was made. Nevertheless, since the prosecution of claimant and his acquittal of all charges is well-documented, it does not appear that the State will be prejudiced in any manner 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).

As set forth above, this application is limited to claimant's cause of action for malicious prosecution, since the cause of action for assault (excessive force) was not timely presented[1]. To prevail on a claim for malicious prosecution, claimant must establish: (1) the commencement or continuation of a criminal proceeding by defendant against claimant; (2) the termination of the proceeding in favor of claimant; (3) the absence of probable cause for the criminal proceeding; and (4) actual malice (see, Broughton v State of New York, 37 NY2d 451 cert denied sub nom. Schanbarger v Kellogg, 423 US 929).

In this matter, there is no question that a criminal proceeding was instituted against claimant, and that the proceeding was terminated in his favor, based upon his acquittal following a jury trial. Defendant, however, argues that there is a presumption of probable cause supporting the prosecution, and claimant must overcome this strong presumption in order to establish that probable cause was lacking. Based on the papers submitted in support of this application, defendant contends that claimant has not overcome this presumption, and therefore has not established a prima facie case of malicious prosecution. For purposes of establishing merit in a late claim application, however, claimant need not establish a prima facie case, but simply must establish an appearance of merit. In this matter, claimant asserts that the criminal proceedings were instituted following an improper and incomplete investigation by the State as well as the Oneida County District Attorney, and that the proceedings were continued even after additional evidence came to light which tended to exonerate claimant. Based on these allegations, the Court finds that claimant has satisfied the minimal standard of merit for late claim applications (see, Matter of Santana v New York State Thruway Authority, supra).

It does not appear that claimant has any other available 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, after weighing and considering all of the factors under Court of Claims Act, § 10(6), it is the opinion of this Court that claimant should be allowed to serve and file his proposed claim, limited to the cause of action for malicious prosecution.

Accordingly, it is

ORDERED, that Motion No. M-66671 is hereby GRANTED; and claimant is directed to file and serve his proposed claim, properly verified, asserting the malicious prosecution cause of action only, 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.

August 27, 2003
Syracuse, New York

Judge of the Court of Claims

[1] In his proposed claim, claimant has also asserted a cause of action for prima facie tort. Such allegations, however, are wholly contained within the cause of action for malicious prosecution.