New York State Court of Claims

New York State Court of Claims

PABON v. THE STATE OF NEW YORK, #2003-015-333, Claim No. 107090, Motion Nos. M-66335, M-66452


Synopsis


Court granted State's motion to dismiss claim as untimely but denied portion which sought dismissal for lack of verification. Claimant's cross-motion for late claim relief or alternatively to treat unverified notice of intention as a claim was also denied.

Case Information

UID:
2003-015-333
Claimant(s):
RICHARD PABON The caption of this claim is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
PABON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this claim is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107090
Motion number(s):
M-66335, M-66452
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Richard Pabon, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 24, 2003
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant's pre-answer motion to dismiss the claim for lack of verification is denied. That part of the motion which seeks dismissal based upon untimely service of the claim pursuant to Court of Claims Act § 10 (3) is granted. Claimant's [cross] motion seeking to amend the claim, for late claim relief (Court of Claims Act § 10 [6]) and to treat the unverified notice of intention as a claim (Court of Claims Act § 10 [8]) is denied. The claim filed on December 18, 2002 asserts a cause of action for "negligent infliction of emotional distress, cruel and unusual punishment, and wrongful conduct" arising from the Department of Correctional Services (DOCS) denial of claimant's written request dated July 23, 2000 (Claimant's Exhibit B [C])[1] to visit his ailing grandmother in a New York City hospital and the November 4, 2000 denial of a subsequent written request dated October 25, 2000 (Claimant's Exhibit B [E]) to attend his grandmother's funeral viewing at a New York City mortuary (see, Claimant's Exhibit B [F]). Claimant was an inmate at Great Meadow Correctional Facility, Comstock, New York during the time periods referenced above.

Defendant's pre-answer motion alleges that the Court lacks jurisdiction because the claim was not verified (see, Court of Claims Act § 11 [b]) and was untimely served and filed (Court of Claims Act § 10 [3]). Claimant did not formally oppose the defendant's motion but filed and served a separate motion (M-66452) seeking an order treating the claimant's notice of intention as a claim (Court of Claims Act § 10 [8]) or, alternatively, granting late claim relief pursuant to Court of Claims Act § 10 (6).[2] Defendant opposed the [cross] motion insofar as it seeks late claim relief. Defense counsel's affirmation is silent, however, regarding claimant's request to treat the notice of intention as a claim.

Defense counsel alleges on the motion that claimant timely served a notice of intention to file a claim on January 26, 2001 but that the claim was not thereafter served and filed within two years of the November 4, 2000 accrual date as required by Court of Claims Act § 10 (3). That section provides that a claimant who serves a notice of intention to file a claim upon the Attorney General within ninety days of the claim's accrual may serve and file a claim within two years of the accrual date.

The motion record establishes that although the claimant served a notice of intention to file a claim the claim itself was not filed with the Court until December 18, 2002 and served upon the Attorney General on December 19, 2002. It is well established that, absent a waiver pursuant to Court of Claims Act § 11 (c) not applicable here, the Court lacks jurisdiction to hear a claim which is not served and filed within the time limits established in Court of Claims Act § 10 (Lurie v State of New York, 73 AD2d 1006 affd, 52 NY2d 849; Greenspan Bros. v State of New York, 122 AD2d 249; Grande v State of New York, 160 Misc 2d 383; Chapman v State of New York, 261 AD2d 814; Scott v State of New York, 204 AD2d 424 lv to appeal denied, 84 NY2d 806). Because the claim was served and filed more than two years after the November 4, 2000 accrual date the claim is untimely and must be dismissed (Lyles v State of New York, 194 Misc 2d 32; Maendel v State of New York, 178 Misc 2d 297).

In his [cross] motion claimant seeks late claim relief pursuant to Court of Claims Act § 10 (6) or to have the Court treat the notice of intention as a claim pursuant to Court of Claims Act § 10 (8).

The first issue for determination upon a late claim is whether the application is timely. Since movant alleges that the activities complained of occurred on July 23, 2000 and November 4, 2000 the application is timely as to a cause of action for negligent infliction of emotional harm which is subject to the three year Statute of Limitations contained in CPLR § 214 (5). The one year Statute of Limitations for any cause of action alleging an intentional tort arising out of DOCS' denial of claimant's leave requests expired no later than November 4, 2001 pursuant to CPLR § 215 (3) and any such cause of action is therefore untimely.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and, whether the claimant has any other available remedy."

This Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965) and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the claim appears to be meritorious, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

While the claimant has offered no excuse for his failure to timely serve and file his claim it does appear that the State was aware of the visitation requests and investigated the facts underlying the claim in reaching its determination that the requests should be denied. Further, it does not appear that the claimant has any other viable remedy available.

The decision to permit an inmate to attend a funeral is discretionary under section 113 of the Correction Law which in relevant part states:
"[t]he commissioner of correctional services may permit any inmate confined by the department... to attend the funeral of his... father, mother, guardian or former guardian, child, brother, sister, husband, wife, grandparent, grandchild, ancestral uncle or ancestral aunt within the state...subject to such rules and regulations as the commissioner of correctional services shall prescribe, respecting the granting of such permission, duration of absence from the institution, custody, transportation and care of the inmate, and guarding against escape."
It is settled that "[p]articipation in visitation programs - and those granting temporary release - is a privilege, not a right (Sloane v State of New York, Ct Cl, January 29, 2003 [Claim No. 106734, Motion No. M-66189] Scuccimarra, J., unreported) and the refusal to grant claimant's request does not therefore give rise to a cognizable claim against the State (Rivera v State of New York, 169 AD2d 885; see also, Ford v State of New York, Ct Cl, November 15, 2001 [Claim No. 101971], Bell, J., unreported; Cain v State of New York, Ct Cl, January 4, 2001 [Claim No. None, Motion No. M-62490] Ruderman, J., unreported; Love v State of New York, Ct Cl, December 12, 2002 [Claim No. 106559, Motion No. M-65874] Minarik, J. unreported; Sloane v State of New York, Ct Cl, January 29, 2003 [Claim No. 106734, Motion No. M-66189] Scuccimarra, J. unreported).

Claimant alleges that DOCS' denials of his requests amounted to cruel and unusual punishment but fails to specify whether he alleges the claims arose under the United States Constitution or the Constitution of the State of New York. Insofar as claimant intended to assert a cause of action under the United States Constitution the Court lacks jurisdiction to hear such a claim (see, Zagarella v State of New York, 149 AD2d 503). If on the other hand claimant intended to seek redress of his grievance by means of a State Constitutional tort claim it has been held that "no constitutional remedy exists when Claimant's 'constitutional tort allegations may be analogized to an existing common-law tort for which there are adequate alternate remedies' " (Madison v State of New York, Ct Cl, November 16, 2001 [Claim No. 101655, Motion No. M-64122] Corbett, J., unreported, quoting Augat v State of New York, 244 AD2d 835, 837, lv denied 91 NY2d 814). Here as in Madison, supra, claimant's injuries could be readily redressed in a common law cause of action sounding in negligence (see, Remley v State of New York, 174 Misc 2d 523) or intentional tort. Claimant's sparse allegations in regard to alleged cruel and unusual treatment raise no cause of action not otherwise known at common law and therefore fail to allege a viable State constitutional tort claim (see Brown v State of New York, 89 NY2d 172; Remley v State of New York, supra).

Upon consideration of the factors enumerated in Court of Claims Act § 10 (6), especially the lack of apparent merit, claimant's request for late claim relief is denied. The determination that the causes of action stated in the claim lack merit also requires denial of the claimant's motion to treat the notice of intention as a claim pursuant to Court of Claims Act § 10 (8). As a result, claimant's [cross] motion is denied in all respects.


June 24, 2003
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated January 27, 2003;
  2. Affirmation of Glenn C. King dated January 27, 2003 with exhibits;
  3. Notice of motion dated February 14, 2003;
  4. Affidavit of Richard Pabon sworn to February 14, 2003 with exhibits;
  5. Affirmation of Glenn C. King dated March 12, 2003.

[1]Claimant's Exhibit B attached to motion M-66452 contains exhibits designated A to Y.
[2]Although claimant's notice of motion and the heading of his affidavit in support of the motion also reference a desire to amend the claim the motion papers do not address the issue and the requested relief is therefore deemed abandoned.