New York State Court of Claims

New York State Court of Claims

SYDNEY v. THE STATE OF NEW YORK, #2003-030-503, Claim No. None, Motion No. M-65988


Pro Se inmate's motion to file a late claim granted. Proposed claim alleges use of excessive force by correction officers. State's opposition raises a factual dispute, does not negate appearance of merit

Case Information

JOHNNY SYDNEY Caption amended to reflect the only proper defendant
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption amended to reflect the only proper defendant
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
January 7, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4 were read on Claimant's motion for permission to

serve and file a late claim pursuant to Court of Claims Act § 10(6):

  1. Motion for Permission to file a Late Claim by Johnny Sydney
2,3 Notice of Intention, Proposed Claim

  1. Affirmation in Opposition by Elyse J. Angelico, Assistant Attorney General, and accompanying exhibits.

After carefully considering the papers submitted and the applicable law, the motion is disposed of as follows:

The proposed claim alleges that on February 20, 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 "...[February 20, 2002 he] was approached inside [his] cell by a correction officer...K. Harris and...[it] was suggested...[he] take a keeplock shower."[Proposed Claim, Paragraph 2]. After some "conflict" about taking the shower - including the officer going to get a fellow officer to assist him in getting claimant to take the shower - Claimant indicates he agreed to take the shower, "...and stepped out of...[his] cell and walked directly to the shower area. Meanwhile...[he] was ordered by both officers to stand by the wall for a frisk , [with] which...[he] complied. The frisk was completed and they moved on and threw...[him] to the ground and started to assault...[him] by kicking and punching...[him] in the chest and back areas while...[he] laid on the floor. They alerted a crew of officers including [a] supervisor, who rushed to the scene and also assaulted...[him] likewise. The supervisor who participated in the assaults was Correction Sergeant Reynolds." [Ibid].

In the Notice of Intention, apparently mailed simultaneously with the proposed claim, Claimant recites essentially the same facts.

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 had remained to psychiatric satellite unit until 7/30/02...." He also indicates elsewhere in the motion for permission to file a late claim, that he did not return from the "Central NY Psychiatric Center" to Sing Sing until June 26, 2002, and reiterates that he was in the facility's psychiatric unit until July 30, 2002.

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.[1] The 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 York, 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 Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed " 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 any 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 York, 149 AD2d 453 (2d Dept 1989)[2]; Goldstein v State of New York, 75 AD2d 613, 614 (2d Dept 1980)[3]. 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 York, 35 AD2d 458, 459 (4th Dept 1971). Claimant has made no such showing, thus this factor weighs against him.

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 February 20, 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 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, J.

The Claimant recites in somewhat conclusory fashion that correction officers "threw" him to the ground and kicked and punched him in the chest and back areas while he laid on the floor. 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 "C"].

According to the Use of Force Report, "at approximately...[7:15 AM] during keeplock shower run inmate turned aggressively on officer K. Harris during a routine pat frisk....[the Claimant] came away from the wall during the pat frisk and attempted to elbow C.O. Harris with his right elbow." [Defendant's Exhibit "B"]. The medical portion of the report indicates that there was "no injury observed or reported" and that claimant was ambulatory and denied any pain or discomfort. [Ibid]. Other than the force necessary to place claimant in handcuffs after he resisted the routine frisk, the correction officers assert that no other force was used.

A misbehavior report charging attempted assault on staff, violent conduct, refusal to obey a direct order and interference with an employee was filed by Correction Officer Harris, alleging the officer was escorting the inmate out of his cell for his keeplock shower, and when officer Harris "placed the inmate on the wall for a pat frisk...he started to become hostile....[The officer] gave the inmate a direct order to keep his hands on the wall, he then came off the wall with his right elbow coming at...[officer Harris]...[Harris] then put the inmate in a half nelson & guided him to the ground. C.O.C. Alcantara assisted me by placing the inmate in mechanical restraints." [Defendant's Exhibit "C"]. After a disciplinary hearing - which Claimant apparently did not attend - Claimant was found not guilty on the attempted assault and violent conduct charge, but guilty on the refusal and interference charges. [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, supra.

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.

January 7, 2003
White Plains, New York

Judge of the Court of Claims

[1] The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant's favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept. 1978)["Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true....(citations omitted)."]
[2] "The only excuse offered in support of the contention that the delay was excusable was a conclusory assertion by the claimant's counsel, unsupported by a physician's affidavit, that the claimant's alleged hospitalization at some undisclosed time delayed her from contacting an attorney, and that the claimant had no knowledge of the 90-day statutory filing requirement."
[3] "Although claimant alleged she was either hospitalized or convalescing for the entire period during which she could have timely filed the claim, such alleged incapacity is inadequate as an excuse for late filing without either a physician's affidavit or hospital records....(citation omitted)."