After carefully considering the papers submitted and the applicable law, the
motion is disposed of as follows:
The proposed claim alleges that on April 19, 2002 the defendant's agents used
excessive force upon the claimant while he was incarcerated at Sing Sing
Correctional Facility (hereafter Sing Sing). Claimant alleges that on "...[April
19, 2002] at approximately 4:30 PM, I sustained injuries in the chin causing
(sic) by Officer McCants and Officer Vernadore...[who] entered my cell location
and attacked me brutally rather than announcing (sic) me to place my hands
behind me for the act of putting on a pair of handcuffs as both ...[officers]
conspired and wrongfully charged me with assault on staff with the unreal
instance that I struck Officer McCants in the groin and shoved officer Vernadore
to cell bars which is untrue and a dishonest statement in a misbehavior report
written by McCants." [Proposed Claim, Paragraph 2].
In the Notice of Intention, apparently mailed simultaneously with the proposed
claim, Claimant indicates that these same officers threw him on his bed "...and
struck...[his] chin several times on bedframe causing...[him] injury in the chin
after they entered cell. Supervised by Sgt. L. Phipps."
Claimant indicates that the delay in filing the claim is excusable because he
had been placed on keeplock status on the date of the alleged use of excessive
force, where he remained until July 5, 2002, and was thereafter in the
facility's psychiatric unit until July 30, 2002. [Motion for Permission to File
a Late Claim, Paragraph 2]. Because of that placement, he was unable to have
access to the law library. Claimant also maintains that he was not "mentally
fit to file a timely motion due to poor mental conditions and I was also sent
out of the jail to central NY for mental problems on 5/02/02 for nearly sixty
days and remained to psychiatric satellite unit until 7/30/02...." He indicates
elsewhere in the motion for permission to file a late claim, that he did not
return from the Central New York Psychiatric Center to Sing Sing until June 26,
2002, and reiterates that he was in the facility's psychiatric unit until July
In order to determine an application for permission to serve and file a late
claim, the Court must consider, "among other factors," the six factors set
forth in §10(6) of the Court of Claims Act. The factors stated 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.
Court is afforded considerable discretion in determining whether to permit the
late filing of a claim. See, e.g.
, Matter of Gavigan v State of New
, 176 AD2d 1117, 1118 (3d Dept. 1991). The presence or absence of any
particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v
New York State Employees' Retirement System Policemen's & Firemen's
, 55 NY2d 979, 981 (1982); Broncati v State of New
, 288 AD2d 172 (2d Dept 2001).
Additionally, the motion must be timely brought in order to allow that a late
claim be filed "...at any time 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...." § 10(6) Court of Claims Act. Here, the
applicable statute of limitations is three (3) years, thus the motion is timely.
§214 Civil Practice Law and Rules.
A claim appears to be "meritorious" within the meaning of the statute if it is
not patently groundless, frivolous or legally defective and a consideration of
the entire record indicates that there is reasonable cause to believe that a
valid cause of action exists. Matter of Santana v New York State Thruway
Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima
facie case at this point, but rather the appearance of merit. See,
e.g., Jackson v State of New York, Claim No. NONE, M-64481, Midey, J.
filed February 19, 2002.
His mere incarceration, and movement within the system, and the asserted
difficulty in obtaining representation by counsel or otherwise conferring with
counsel, does not constitute a reasonable excuse in the nature of a disability,
or otherwise. See
, Plate v State of New York,
92 Misc 2d 1033,
1037-1039 (Ct Cl 1978). With respect to any asserted mental impairment, more
than the claimant's self serving statement that he was not in the right mental
condition to pursue his claim is required, in the form of medical records or a
physician or psychiatrist's affidavit. See Cabral v State of New
, 149 AD2d 453 (2d Dept 1989)
Goldstein v State of New York
, 75 AD2d 613, 614 (2d Dept
. There must be some showing that the
circumstances of his incarceration prevented claimant from taking effective
steps to perfect his claim, or contact an attorney. Bommarito v State of New
, 35 AD2d 458, 459 (4th Dept 1971). Claimant has made no such showing,
thus this factor weighs against him.
Similarly, his claim of lack of knowledge of the law and an inability to retain
counsel do not constitute acceptable excuses. Innis v State of New York,
92 AD2d 606 (2d Dept 1983), affd, 60 NY2d 654 (1983); Musto v State of
New York, 156 AD2d 962 (4th Dept 1989).
The absence of an excuse, however, is but one of the factors to be considered,
and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc.
v New York State Employees' Retirement System Policemen's & Firemen's
Retirement System, supra.
The closely related factors of notice, opportunity to investigate and prejudice
to the State, considered together, weigh toward granting Claimant's motion. Any
pictures or other documentation of the incident would presumably be maintained
by Defendant's agents, including a Use of Force Report from April 19, 2002,
attached to Defendant's papers filed in opposition. [Defendant's Exhibit "B"].
The passage of time has not been so great that the State's ability to
investigate is impeded to its prejudice. C.f., Edens v State of New
York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one-half
months from date of accrual). Accordingly, these factors weigh in favor of
granting the motion.
As noted, Claimant need not establish his claim prima facie, but rather
show the appearance of merit. Jackson v State of New York, supra.
If the allegations in the claim are accepted as true for the purposes of the
motion, Claimant has made the requisite showing of merit in order to permit late
filing of his claim.
Use of physical force against an inmate is governed by statute, regulation, and
the attendant case law. The statute provides in pertinent part "....[w]hen any
inmate...shall offer violence to any person,...or resist or disobey any lawful
direction, the officers and employees shall use all suitable means to defend
themselves, to maintain order, to enforce observation of discipline,[and] to
secure the persons of the offenders...." § 137(5) NY Correction Law. As
set forth at 7 NYCRR § 251-1.2 (a), an officer must use "...[t]he greatest
caution and conservative judgment ...in determining...whether physical force is
necessary; and...the degree of such force that is necessary." Once an officer
determines that physical force must be used, "...only such degree of force as is
reasonably required shall be used." 7 NYCRR § 251-1.2(b). The State may be
liable for the use of excessive force by its employee under the concept of
respondeat superior. See, Jones v State of New York, 33
NY2d 275,279 (1973).
To assess whether force was necessary, or whether the particular degree of
force used was reasonable, "...a Court must examine the particular factual
background and the circumstances confronting the officers or guards (see,
e.g., Lewis v State of New York, 223 AD2d 800; Quillen v State of New
York, 191 AD2d 31; Brown v State of New York, 24 Misc 2d 358). Often
the credibility of witnesses will be a critical factor in these determinations
(Davis v State of New York, 203 AD2d 234;....citation omitted)."
Kosinski v State of New York, Claim No 97581, November 30, 2000, Sise,
The Claimant recites in somewhat conclusory fashion that correction officers
"brutally" "attacked" him, without "announcing" that he should place his hands
behind him for placement of handcuffs, and that the two officers wrongfully
charged him with assaulting them in a misbehavior report. Defendant's opposing
papers do not contain an affidavit by someone with knowledge of the incident in
question, but do have the documentation of the use of force, as well as the
subsequent disciplinary proceedings . [See, Defendant's Exhibits "B" and
According to the Use of Force Report, the acting head of the psychiatric unit
had ordered that Claimant be removed from general confinement and placed in the
Mental Health Unit. [Defendant's Exhibit "B"]. Correction Officer Varnadore
"...put inmate in a body hold and placed inmate on cell bed. Officer W. McCants
applied mechanical restraints (handcuffs)." The medical portion of the report
indicates that claimant had a 2 inch laceration under his chin, with no other
signs of injury. Correction officers reported that the inmate fell during the
struggle striking his chin on the bedframe. Other than the force necessary to
place claimant in handcuffs, the correction officers assert that no other force
A misbehavior report charging refusal to obey a direct order and assault on
staff was filed by Correction Officer McCants, alleging Claimant had refused to
turn around so that the officer could put on the handcuffs, and that the inmate
struck one officer, and shoved the other against the cell bars. [Defendant's
Exhibit "C"]. After a hearing, it appears Claimant was found not guilty on the
assault charge, and guilty on the refusal charge. [Ibid].
What has been raised by the State's submission is a factual dispute, which -
given the limited purpose of this motion - does not alone conclude the matter.
Indeed, based upon the facts alleged, the claim is not patently groundless,
frivolous or legally defective and a consideration of the entire record
indicates that there is reasonable cause to believe that a valid cause of action
exists. Matter of Santana v New York State Thruway Auth,
Having considered the relevant statutory factors, the Court finds that the
balance of factors weigh in Claimant's favor, and it is therefore
ORDERED, that Claimant's application for permission to file a late claim is
granted. Claimant is directed to file and serve his claim in the form annexed
to his present application, pursuant to Court of Claims Act §§ 10, 11,
and 11-a within sixty (60) days after this order is filed.