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.
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 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
, 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.
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 ...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
"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.
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.