New York State Court of Claims

New York State Court of Claims

ALVEAR v. THE STATE OF NEW YORK, #2003-030-504, Claim No. None, Motion No. M-65709


Pro se inmate's motion for permission to file a late claim denied.

Case Information

JUAN MANUEL ORTIZ ALVEAR Caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
Caption has been 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 9, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5 were read on Claimant's motion for permission to

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

  1. Affidavit in Support of Motion to file a Late Claim by Juan Manuel Ortiz Alvear
2,3, Notice of Intention, Notice of Motion

  1. Affidavit in Support of Tort Claim for Damages with accompanying exhibits
  1. Affirmation in Opposition by Mary B. Kavaney, 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, among other things, that on July 13, 2000 the defendant's agents wrongfully accused the proposed claimant of damaging foodstuff in the commissary, resulting in his being unfairly subjected to disciplinary proceedings and loss of privileges while he was incarcerated at Green Haven Correctional Facility (hereafter Green Haven). He also asserts that he was negligently exposed to secondhand cigarette smoke, and suffers from breathing problems as a result of such exposure; that he was wrongfully removed from his program assignment; and that some legal papers were stolen.

In the affidavit in support of his motion, Claimant states that he is "...not familiar with civil law on personal injury, negligenc[e]..., intentional torts, intentional infliction of mental, real, distress libel or slander, inmate false imprisonment and false report." [Affidavit in Support of Motion to Late File a Claim, Paragraph 2]. He indicates he was not aware of the filing period set forth, had a limited ability to confer with counsel or to have access to legal materials because of his incarceration within the state prison system, as well as his limited ability to "read and write beyond a certain grade level...." [Ibid, Paragraph 3]. He avers his claim is meritorious, has no other remedy, and that the "...incident occurred on July 31, 2000 but had consequences until April 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. Assuming that what are alleged are various claims of negligence, the applicable statute of limitations would be 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). 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.

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 Court notes that in some of the copies of correspondence appended to his proposed claim, the Claimant indicates he has a background as a professional journalist, having founded a Spanish/American newspaper in New York, and that he "...practiced law in his native country of Colombia." [Claimant's Exhibit "9"].

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. As described by Claimant in his proposed claim, his loss of his assignment to the commissary program occurred in 1999; and the incidents concerning his lost legal papers, alleged damage of foodstuff and the attendant disciplinary proceedings all occurred in or about July and August, 2000, and the alleged harmful exposure to second hand smoke started in 1998. Any documentation of incidents having to do with disciplinary proceedings would presumably be maintained by Defendant's agents in the disciplinary file, however the passage of time has been long enough that the State's ability to investigate is impeded to its prejudice, in that any witnesses may be hard to locate or have difficulty recalling the vaguer allegations of the proposed claim. 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 against 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 nonetheless not established the appearance of merit.

No supporting medical evidence has been submitted with respect to any claim that he was harmed by secondhand cigarette smoke.

The discretionary placement of an inmate from one program or job placement to another is not actionable under the circumstances alleged. Claimant appears to have exhausted his administrative remedies with respect to the misbehavior report charging him with taking food from the commissary. [Claimant's Exhibit "2"]. After his Tier II hearing was reversed due to a procedural error- memorialized in a writing to Claimant dated August 10, 2000 [Claimant's Exhibit "4"] - Claimant sought reinstatement to his program assignment in the commissary [Claimant's Exhibit "5", "6", "7" , "8"], and was, apparently, approved for such assignment and placed on the waiting list.[Claimant's Exhibits "9" "10"]. Somewhat inconsistently, he appears to have been asking both for reinstatement to his commissary position or reassignment to another program that would complement his experience as a journalist and a lawyer. [See, Claimant's Exhibit "9"]. Claimant filed a grievance concerning his being placed on the waiting list rather than reinstated, which was disposed of in December, 2000 [Claimant's Exhibit "11"]. More administrative appeals resulted in the State Central Office Review Committee finding, in a writing dated February 14, 2001, that Claimant had been appropriately suspended from his job assignment in July, 2000, and was entitled to back pay, that was apparently paid to him in August, 2000. [Claimant's Exhibit "12"].

Having considered the relevant statutory factors, the Court finds that the balance of factors weigh against Claimant and, accordingly, his motion to file a late claim is in all respects DENIED.

January 9, 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)."]