Movant brings a motion seeking permission to file a late claim for injuries
sustained as a result of an assault. Defendant opposes the motion.
Court of Claims Act § 10(6) allows a movant who has failed to properly
serve a notice of intention or who has failed to properly
file and serve a claim within the time frame set forth in Court of Claims Act
§ 10 to make an application to the Court to file such a claim, in the
discretion of the Court, at any time before an action asserting a like claim
against a citizen of the State would be barred under article two of the CPLR
(Court of Claims Act § 10). Movant's motion is timely (Court of Claims
Act § 10(6); CPLR § 215).
As a component of any late claim application, the proposed claim containing all
of the information required by § 11 of the Court of Claims Act must be
provided (Court of Claims Act §10). Movant has not attached a proposed
claim. This alone could be grounds for denying the application (
See, Goble v State of New York
, Ct Cl, unpublished decision of J.
Ruderman, dated July 16, 2001, UID # 2001-010-047, Cl No. 99390, Motion No.
Turning to the factors in the statute, the first, whether the delay in filing
the claim is excusable weighs against granting movant's application. Movant
asserts several reasons for the delay. First, that after the incident occurred,
he was housed in the Special Housing Unit for 30 days and apparently could not
prepare a notice of intention or claim during that time. He then received the
wrong information from the law library assistants regarding the time frame
required to timely file ( he was told he needed to file within 30 days instead
of 90), and by the time he received the correct information the time frame for
timely service had passed. Ignorance of the law is not an acceptable excuse
Matter of Galvin v State of New York,
176 AD2d 1185, lv denied
NY2d 753). The incident occurred in February 2002, and his late claim
application was not filed until December 12, 2002.
The factors of whether the State had notice of the essential facts, an
opportunity to investigate the underlying claim, and whether the State will
suffer substantial prejudice if the late filing and serving of the claim are
permitted will all be addressed together. These factors weigh against granting
the application. Movant does not address these factors other than a conclusory
statement that the State will suffer no prejudice. In opposition, defendant
asserts that the State had no notice or opportunity to investigate, since
nowhere other than in this application to the Court, is there any mention of an
assault upon movant by correction officers. Defendant also alleges that the
State will be prejudiced by the delay as it will be difficult to find witnesses
and any physical evidence at the scene of the incident which no longer exists.
The Court does not find defendant's assertion of prejudice entirely persuasive
since the loss of physical evidence could have occurred with even a timely
notice of intention or claim served or served and filed 90 days after accrual.
The State has statements from the correction officers who transported movant to
the Special Housing Unit, the sergeant who was present and the nurse who
examined him, as well as photographs of his injuries. From this information,
the State had notice of movant falling on snow-covered ice that night, not an
assault. Furthermore, movant refused to make a statement to the nurse about how
he was injured. The Court finds the factor of notice and opportunity to
investigate weigh against granting movant's application.
The next factor, whether the claim appears to be meritorious, is often referred
to as the most essential factor. Generally a proposed claim meets this standard
if it is not patently groundless, frivolous or legally defective, and upon
consideration of the entire record, there is cause to believe that a valid cause
of action exists (
Matter of Santana v New York State Thruway Authority
, 92 Misc 2d 1,11).
Movant claims that while being transported to the Special Housing Unit by two
correction officers, one of the officers slammed his head against a wall and
then (it is not clear whether it is the same officer or another officer) knocked
movant to the ground where both officers hit, kicked and slammed him on the
ground. Defendant does not produce any affidavit from a person with knowledge
of the facts. Defendant does produce the movant's medical evaluation upon
arrival at the Special Housing Unit, which indicates that viewing movant in his
underwear, he had a few abrasions, two around the right eye, one on the right
side of his chin, and a small abrasion on his left knee. Also included are the
memoranda from the sergeant to the lieutenant and from the two transporting
correction officers to the sergeant describing movant's slip and fall on ice
while being transported to the Special Housing Unit. Clearly there is a factual
dispute as to how movant was injured while he was being transported to the
Special Housing Unit. Yet, movant's affidavit sets forth facts which, if
accepted as true, are not frivolous, legally defective, or patently groundless
and suggest he may have a meritorious cause of action.
The final factor is whether the movant has any other available remedy. Movant
clearly has no other remedy.
Upon balancing all of the factors in Court of Claims Act §10(6), although
a close call, when it is coupled with movant's failure to attach the proposed
claim as required by the statute, the Court denies movant's application.
The Court considered the following documents in deciding this motion:
Affidavit of Jeffrey Graham, in
Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney
General, in opposition, with exhibits attached