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).
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
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
. 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,
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.