Steven Williams, the movant herein, alleges in his proposed claim that the
untimely processing of his institutional grievances deprived him of procedural
due process and prohibited him from exhausting his administrative remedies in
order to pursue his grievances further. The three institutional grievances -
appended to his proposed claim - appear to involve, respectively, (1) a denial
of an inmate to inmate correspondence request; (2) a partial acceptance of a
complaint about the adequacy of the Downstate Correctional Facility (hereafter
Downstate) law library; and (3) a denial of a transfer request. Additionally,
movant has appended a letter complaint he made concerning the alleged
confiscation of legal books from him by officials at Downstate as well as their
alleged inaction concerning his three grievances, and a letter response from
Deputy Commissioner Leclaire of the New York State Department of Correctional
Services (hereafter DOCS) dated October 22, 2002, explaining the removal of the
books, and noting that all three grievances had been responded to in September,
2002. The Court notes that the institutional grievance forms movant has
appended all contain responses by Defendant's agents, as well as instructions
concerning appeal of institutional grievances. The proposed claim asks for
judgment "against the defendant in the sum of $10,000 for each count of
negligence, $10,000 for each count of "Intentional" deprivation of procedural
due process, $10,000 for each count of deprivation of procedural due process,
$10,000 for each count of deprivation of right to exhaustion of department
remedies equaling 20 counts totaling $200,000." [Proposed Claim, Page 6].
In his Affidavit in support of this application, movant explains his nine month
delay in filing a claim as the result of ignorance concerning filing
requirements - including misinformation from a "jailhouse lawyer," limited
access to an adequate law library; and the denial of a permit to possess legal
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). The present
motion appears to be timely. Civil Practice Law and Rules §§ 214,
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 28, 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 1990).
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. If
his claim contained a viable cause of action, it would probably be primarily
based upon documentary evidence that would be fairly easy to obtain. 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
As noted, Claimant need not establish his claim prima facie, but rather
show the appearance of merit. Jackson v State of New York, supra.
Claimant has not made the requisite showing of merit in order to permit late
filing of his claim.
As noted by the Assistant Attorney General, causes of action for deprivation of
procedural due process, or access to a law library [See, Jacobs v
State of New York, 193 Misc 2d 413 (Ct Cl 2002)], simply do not lie in the
Court of Claims. A remedy, if any, would lie either in federal court for what
could be perceived to be violations of federal constitutional protections
[See, generally, 42 USC § 1983]; or in an Article 78 proceeding for
judicial review of the administrative determinations he complains of. See,
generally, Civil Practice Law and Rules §7801 et seq. He has not
alleged any facts or details describing how the Defendant's agents were
allegedly negligent, nor has he alleged any cognizable damage, or specifics
concerning the time, place or manner in which any wrongdoing occurred.
See, Court of Claims Act §11(b).
Accordingly, Claimant's motion number M-66820 for permission to file a late
claim is hereby in all respects denied.