New York State Court of Claims

New York State Court of Claims

POPE v. STATE OF NEW YORK, #2003-018-227, Claim No. NONE, Motion No. M-66289


Synopsis


Late filing application denied pursuant to Court of Claims Act § 10(6).


Case Information

UID:
2003-018-227
Claimant(s):
JAMES R. POPE, SR.
Claimant short name:
POPE
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-66289
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
JAMES R. POPE, SR.Pro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: TIMOTHY P. MULVEY, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 9, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision
Movant has brought a motion for permission to file a late claim pursuant to Court of


Claims Act § 10(6). Defendant opposes the motion.

The proposed claim[1]
alleges the following:
1) On or about 24th day of August 2002, Parole Officers KEVIN McCATHY, [sic] had convicted Felon [sic] JAMES DENCE, restrain, and exposed [sic] great risk of serious physical injury, at gun point, their sole purpose was to assume control of Pauline Chatfield as a Hostage [sic], to arrest claimant JAMES R. POPE SR. [sic] for Parole [sic] violations.
2) On or about Apirl [sic] 25, 2002 New York State Parole OFFICER [sic] William M. GROME, [sic] told JAMES R. POPE SR., that I [sic] could not be with girlfriend Pauline Chatfield of 7½ years of being together as boyfriend, [sic] girlfriend, and living together as well, when claimant was not in jail.
2,A) On or about Apirl [sic] 25, 2002 P.O. Grome told claimant that he could not live with his girlfriend Pauline Chatfield, whom [sic] has helped and supported claimant though [sic] his hard time's [sic] in life.
3) On or about August 24, 2002 New York State Parole Officers supported [sic] JAMES DENCE in to holding Pauline Chatfield at gun point to arrest claimant. PAROLE OFFICERS KEVIN McCARTHY, William M. Grome, and Douglas C. Smith, perform [sic] acts out side [sic] their scope of employment as Parole Officers and Law officers [sic] and duties to New York State.
4) Parole Officers caused claimants to lose, and cause destruction to our property, resulting from intentional negligent, [sic] and to ensure [sic] security of the people of New York State, for letting a drunk driver, driver [sic] a van, with out [sic] a licens [sic].
5) Parole Officers, Grome, McCarthy, and Smith negligently failed to ensure [sic] the property of James Pope and Pauline Chatfield, and threatin [sic] everyone would go to jail, if not help brake [sic] the Laws of New York State, to arrest James Pope, wheather [sic] it be having people drive drunk, getting people to do drugs, and/or having a convicted felon, hold a shot gun around people of the State of New York, in order to arrest Parole [sic] violator, James R. Pope.
6) Parole Office's [sic] Grome, McCarthy and Smith, are helping a person that messes with 4 [sic] year old little girl, in order to arrest James R. Pope Sr. [sic] of Parole [sic] violation only, no charges of a crime on the State and/or person, but supported a person that did sex acts on a little girl, and his own brother's [sic].

Court of Claims Act § 10(6) allows a claimant who has failed to properly serve a notice of intention or who has failed to file and properly 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[6]). The application is timely (CPLR 214[4], [5]; 215).

To determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in Court of Claims Act § 10(6), and any other relevant factors. The presence or absence of any one factor is not determinative (
Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965). Instead, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim.
The first factor, is whether the delay in filing the claim is excusable. Movant asserts that he had no access to legal assistance during the ninety days following the alleged incident "because of the illness caused by the incident underlying this claim" (movant's supporting document page 2, paragraph [2, A]). Movant has not provided any substantiation for his alleged illness, and in fact, does not elaborate on exactly what illness he suffered. As a result, this is not a valid excuse. This factor must weigh against granting movant's application.

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. Movant does not address these factors and it is difficult to determine whether or not the State would have had any notice or opportunity to investigate, since it is not clear what the State allegedly did wrong. These factors weigh against granting the 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). As required by Court of Claims Act § 10(6), movant has attached his proposed claim to the motion papers. However, the proposed claim is not verified as required by Court of Claims Act § 11(b), and thus is jurisdictionally defective. The proposed claim and other supporting documents also do not identify what the State allegedly did wrong that warrants an award of damages. Since movant's proposed claim is legally defective, this factor must also weigh against granting movant's application.
The final factor is whether the proposed claimant has any other remedy available. It is not clear from the facts presented whether movant would have any other remedy.

Accordingly, based upon the foregoing movant's application is DENIED without prejudice.


June 9, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding this motion:

Notice of Motion..................................................................................1

Unsworn affidavit of James R. Pope, Sr., in support...........................2

Affirmation of Timothy P. Mulvey, Esquire, Assistant

Attorney General in opposition with exhibit attached thereto..3


Unsworn statement of James R. Pope, Sr., in opposition to

Affirmation of Timothy Mulvey, Esquire, Assistant

Attorney General.......................................................................4



[1]A proposed claim is required to be submitted with the motion for late Claim relief pursuant to Court of Claims Act § 10(6). Movant submits a document labeled, "Notice of Intention to File Claim." The Court will consider this as the proposed claim for purposes of the motion.