New York State Court of Claims

New York State Court of Claims

ALSTON v. THE STATE OF NEW YORK, #2003-015-360, Claim No. NONE, Motion No. M-67201


Upon consideration of all statutory factors contained in Court of Claims Act § 10 (6) Court denied late claim relief to movant seeking to recover damages for denial of prompt medical attention after alleged assault by correction officers. The motion was deemed unnecessary as to portion of claim for assault since claimant served a notice of intention regarding that cause of action.

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:
Dreyer Boyajian, LLPBrian W. Devane, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael C. Rizzo, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 14, 2003
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for late claim relief pursuant to Court of Claims Act § 10 (6) is denied. The proposed claim was verified by movant's attorney and seeks to recover $5,000,000.00 in damages for an alleged assault by two unnamed correction officers at the Greene Correctional Facility, Coxsackie, New York on April 2, 2003. The claim further alleges deliberate indifference by correction personnel to movant's medical needs stemming from the assault.

The motion is supported solely by an attorney's affidavit and includes a copy of a proposed claim. In opposition to the motion the defendant submitted a photocopy of a notice of intention to file a claim which was properly served upon the Attorney General's Office on June 27, 2003 by James M. Bogin Esq., managing attorney for Prisoners' Legal Services of New York who appeared specially on claimant's behalf for the limited purpose of serving the notice of intention (see, defendant's Exhibit A).

The defendant argues that in part the instant motion is unnecessary since movant, having served a notice of intention, may serve and file a claim for an intentional tort such as assault within one year of the claim's accrual in April, 2003 (see, Court of Claims Act § 10 [3-b]). The Court agrees that the instant motion is unnecessary in that regard. The defendant points out, however, that the notice of intention did not raise and does not address the defendant's alleged deliberate indifference to movant's medical needs and, therefore, the notice did not serve to extend the movant's time to file a claim related to that particular cause of action. This argument is likewise meritorious and that portion of the proposed claim alleging deliberate indifference will be addressed in the context of the instant motion for late claim relief pursuant to Court of Claims Act § 10 (6).

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".

The first issue for determination upon an application for late claim relief is whether the application is timely. Since movant alleges that he was deliberately denied medical care between April 2, 2003 and April 10, 2003 it appears that the instant application filed on July 31, 2003 is timely pursuant to CPLR 215 which provides a one year Statute of Limitations for intentional tort causes of action.

Turning to the statutory factors, 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 proposed 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).

With respect to the existence of a valid excuse for the failure to timely serve and file a claim, movant's attorney alleges that a notice of claim was filed in Supreme Court on or about July 25, 2003 and "[s]ervice was made via mail upon the Superintendent of the Greene County [sic] Correctional Facility and the Greene County Attorney". Counsel argues that the delay in serving a notice of intention or in filing and serving the claim should be excused because counsel merely served the wrong governmental entity. The Court is not persuaded by movant's argument. Moreover, movant's attorney showed no reasonable basis for his initial belief that Greene County was indeed the responsible party (see, Lemma v Off Track Betting Corp., 272 AD2d 669). The absence of a valid excuse weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice will be considered together. Movant has failed to provide the Court with a copy of the "notice of claim" which was purportedly filed in Supreme Court and served upon the Greene Correctional Facility Superintendent in July 2003. Without proof that a "notice of claim" was in fact served on the Superintendent it is impossible for the Court to determine on this motion whether the defendant received any notification of movant's claim of deliberate indifference. Although movant's attorney contends in his reply affidavit that the notice of intention served by Prisoners' Legal Services was sufficiently particularized to prompt an investigation which would have "led Defendant to discover that the claimant did not receive appropriate medical attention", the Court is not persuaded on the motion that the defendant received timely notice of this aspect of the claim and was afforded a reasonable opportunity to investigate. It is noteworthy that the defendant has not alleged that any prejudice resulted from movant's delay. Therefore, two of these three factors weigh against granting the motion.

Most significantly, movant has not demonstrated the potential merit of the proposed claim. Initially it is noted that the application is supported solely by the affidavit of movant's attorney who is without direct knowledge of the facts. Furthermore, few if any details are provided either in counsel's affidavit or in the proposed claim itself to support a cause of action for deliberate indifference to movant's medical needs. (cf., Smith v State of New York, Ct Cl [Claim No. 103396, Motion No. M-63231] Sise, J., unreported). In Lepkowski v State of New York, 302 AD2d 765, 766, the Appellate Division, Third Department recently held that "[i]t is axiomatic that the sufficiency of a claim rests solely upon the assertions contained therein, and defendant is not required to go beyond the claim in order to investigate an occurrence or ascertain information that should have been provided pursuant to Court of Claims Act § 11". Here, neither the proposed claim nor counsel's affidavit contain any description of the alleged indifference to movant's injuries or the dates when he allegedly sought to obtain medical attention and was denied. Counsel merely alleges that movant was injured on April 2, 2003 and was treated at Albany Medical Center on April 10, 2003. These allegations standing alone do not demonstrate the potential merit of the proposed claim as it relates to a cause of action for deliberate indifference to the movant's medical needs (see, Smith v State of New York, supra). The issue of merit also weighs against granting the motion.

It does not appear from the facts alleged on the motion that movant has an alternative remedy available in which to assert the deliberate indifference cause of action and this fact weighs in favor of granting the motion.

Upon consideration of all of the above factors including the movant's failure to establish the potential merit of the claim, the instant application for permission to serve and file a late claim asserting the deliberate indifference of correction personnel to his medical needs must be denied.

The motion is, therefore, denied in all respects.

October 14, 2003
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 28, 2003;
  2. Affidavit of Brian W. Devane sworn to July 28, 2003 with exhibit;
  3. Affidavit of Michael C. Rizzo sworn to August 13, 2003 with exhibit;
  4. Reply affidavit of Brian W. Devane sworn to August 21, 2003.