New York State Court of Claims

New York State Court of Claims

MOSLEY v. THE STATE OF NEW YORK, #2003-030-562, Claim No. NONE, Motion No. M-66728


Motion for permission to file late claim denied. No appearance of merit. No jurisdiction.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

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:
August 13, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 3, were read and considered on Claimant's motion

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

1,2 Notice of Motion, Affidavit of Elton Mosley, Claimant and accompanying proposed Claim

  1. Affirmation in Opposition of Elyse Angelico, Assistant Attorney General
After carefully considering the papers submitted and the applicable law, the motion is disposed of as follows:

In his proposed claim, Claimant alleges that he was wrongfully confined in the Special Housing Unit (SHU) while he was an inmate at Sing Sing Correctional Facility (hereafter Sing Sing) from October 31, 2002 to November 6, 2002. He asserts that he was transferred to Sing Sing for a court ordered deposition, scheduled to take place on November 1, 2002. Upon his arrival, he was housed in SHU without access to legal materials he required to prepare for his deposition until "minutes before he was escorted to the facilities [sic] visiting room where the...deposition was to be taken. These acts violated the claimants [sic] Constitutional rights and caused serious undue hardships." [¶5, Proposed Claim].

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. 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 ". . . 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 . . . " Court of Claims Act § 10(6).

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, UID #2002-009-007, Claim No. None, Motion No. M-64481, Midey, J., February 19, 2002.

His mere incarceration, and movement within the system, 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 or consult with 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 against granting Claimant's motion. There is no indication that Claimant did other than make vocal complaints at the time he was housed in SHU to New York State Department of Correctional Services' (hereafter DOCS) employees: a common enough occurrence in a prison setting. There is no indication that any investigation concerning his complaint took place. The issue becomes whether the passage of time has been so great that the State's ability to investigate is impeded to its prejudice. Thus, in Barrett v State of New York, UID #2000-001-036, Claim No. None, Motion No. M-60959, Read, P.J., June 30, 2000, the Court denied movant's application for permission to late file his bailment claim six (6) months after it had accrued, saying "[i]t cannot be assumed . . . that the State had actual knowledge of an event giving rise to a claim merely because it owned and maintained the facility in which it occurred (Turner v State of New York, 40 AD2d 923). While sufficient notice may be inferred from certain occurrences - - such as an inmate assault inflicting serious injuries - - that would, in the normal course be investigated for other reasons . . . (citation omitted), the existence of a report filed with the State does not automatically establish sufficient notice to satisfy the statut[ory requirement of] . . . (citation omitted) notice of ‘the facts constituting the claim,' which has been held to mean that the State must be aware that there will be - - or is likely to be - - litigation in the future

. . . (citation omitted). A routine grievance asserting a property loss in a State correctional facility does not forecast litigation." In the present case, not even a grievance appears to have been filed. Accordingly, these factors weigh against granting claimant's 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 not made the requisite showing of merit in order to permit late filing of his claim.

As to wrongful confinement, given Claimant's transfer to Sing Sing for the limited purpose of a court ordered deposition, housing decisions are discretionary. Absent some clear violation of rules or regulations, prison officials are protected by the immunity considerations of Arteaga v State of New York, 72 NY2d 212, 219-220 (1988).

As to the cause of action premised upon the interference with claimant's access to the Courts by the failure to allow him to review his legal materials prior to being deposed - and assuming the asserted facts even describe such a claim - that cause of action is based upon a violation of the Federal Constitution and must be pursued pursuant to 42 USC § 1983. There is no recognized claim against the State of New York in this Court for an alleged violation of 42 USC § 1983. See, Welch v State of New York, 286 AD2d 496 (2d Dept 2001); Zagarella v State of New York, 149 AD2d 503 (2d Dept 1989); Davis v State of New York , 124 AD2d 420, 423 (3d Dept 1986), and as a consequence late claim relief may not be accorded upon a cause of action for which the Court of Claims lacks jurisdiction. See, e.g., Matter of Rye Psychiatric Hosp. Center v State of New York, 177 AD2d 834 (3d Dept 1991), lv denied, 80 NY2d 751 (1992); Board of Educ. of City of N. Y. v State of New York, 88 AD2d 1057 (3d Dept 1982), affd, 60 NY2d 716 (1983). Only in limited circumstances - not present here - may a claim asserting violations of the New York State Constitution be heard in the Court of Claims.[1]

Moreover, no claim for monetary damages is made out when Claimant has merely asserted in a conclusory fashion that he was caused undue hardship in some unspecified manner. The proposed claim does not have the appearance of merit.[2]

Accordingly, Claimant's motion for permission to file a late claim is in all respects DENIED.

So Ordered.

August 13, 2003
White Plains, New York

Judge of the Court of Claims

[1]See, Brown v State of New York, 89 NY2d 172 (1996). The factors the Court must consider to determine if a cause of action for a State constitutional tort is properly brought in the Court of Claims are whether: (1) the applicable constitutional provision is self-executing; (2) monetary damage remedies further the purpose of the underlying constitutional provisions and necessarily assure its effectiveness; (3) the provisions are such that they impose a clearly defined duty on the State officers and/or employees; (4) declaratory and injunctive relief is inadequate; and (5) money damages necessarily deter governmental conduct and make the claimant whole.
[2] As noted, Claimant may have a federal claim, or may also have a right to bring a special proceeding pursuant to Article 78 of the Civil Practice Law and Rules, given the lack of any monetary loss. Thus, the factor concerning other available remedies weighs against him as well.