New York State Court of Claims

New York State Court of Claims

GLASGOW v. THE STATE OF NEW YORK, #2003-031-010, Claim No. None, Motion No. M-66226


Claimant has demonstrated the appearance of merit to his proposed claim for illegal confinement. His motion for permission to file a late claim is granted.

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:
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 19, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 3, were read on motion by Claimant for an order granting permission to file a late claim:
1. Claimant's Notice of Motion, filed December 19, 2002;
2. Affidavit of Raul Glasgow, sworn to December 14, 2002, with attached exhibits;
3. Affidavit of Gregory P. Miller, Esq., sworn to January 28, 2003. This is the motion of Raul Jules Glasgow for permission to file a late claim pursuant to § 10(6) of the Court of Claims Act (the "CCA"). The proposed claim alleges that Claimant was illegally confined for 76 days following a Tier III disciplinary hearing. That hearing was conducted at Gowanda Correctional Facility on March 19, 2002. Claimant does not specifically state the nature of the charges against him that were determined at that hearing. He does indicate, however, that the evidence used against him at the hearing was improperly obtained by Defendant when it tampered with his outgoing legal mail. In any event, Claimant alleges that the hearing was flawed in the following respects: 1) evidence that was illegally obtained, or at least obtained in contravention of Department of Correctional Services' rules and regulations, was admitted against him; 2) he was denied the right to introduce certain documentary evidence; and 3) the hearing officer was not fair and impartial as he was involved in the investigation of the incidents and events that led to the charges against him.

Subdivision 6 of § 10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: 1) whether the delay was excusable; 2) whether Claimant has any other remedy; 3) whether Defendant had notice of the essential facts constituting the claim; 4) whether Defendant had an opportunity to investigate; 5) whether Defendant would be substantially prejudiced; and 6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979).

In its opposition to this motion, Defendant disputes only factors 1 (excuse for the delay) and 6 ( merit) conceding, and appropriately so, that factors 2, 3, 4, and 5 weigh in Claimant's favor. With regard to his excuse for the delay, Claimant asserts that he was incarcerated and was unaware of the time limitations for commencing an action in the Court of Claims. This, of course, is not a legally recognizable excuse for Claimant's delay (Wallace v State of New York (Ct Cl), Read, P.J., June 27, 2000, [Motion No. M-61368], UID No. 2000-001-030)[1]. This factor, therefore, weighs in favor of Defendant. The absence of an excuse, however, is only one of the factors considered by the Court in reviewing an application pursuant to § 10(6), and does not necessarily preclude the relief sought (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

Of the six factors enumerated in CCA § 10(6), it is the appearance of merit that is most significant. It would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (see e.g. Prusack v State of New York, 117 AD2d 729). Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

Here, Claimant alleges that because the hearing was conducted in violation of the rules and regulations of the Department of Correctional Services ("DOCS"), his confinement resulting from that hearing was illegal.

Defendant correctly points out that the State enjoys absolute immunity from claims for monetary damages relating to disciplinary hearings when the rules and regulations that govern such hearings are followed (Arteaga v State of New York, 72 NY2d 212). Additionally, the fact that the disposition from a disciplinary hearing is later reversed does not necessarily remove the matter from the blanket of immunity (Arteaga v State of New York, 72 NY2d 212; Bonacorsa v State of New York (Ct Cl), Bell, J., May 31, 1994 [Claim No. 86522]). However, the Claimant's unrefuted allegations are that the hearing was not conducted in accordance with applicable rules and regulations. If Defendant did violate its own rules and regulations in conducting the hearing, or otherwise acted outside the sphere of privileged actions, the State's immunity does not attach (Arteaga v State of New York, 72 NY2d 212; Holloway v State of New York, 2001 WL 777553 (3d Dept 2001); cf. Gittens v State of New York, 132 Misc 2d 399 (Ct Cl 1986). The issue, then, is whether or not Claimant has set forth facts sufficient to support his contention that the hearing was conducted in violation of his due process rights.

Claimant's allegations concerning the improper seizure of his mail that led to his Inmate Misbehavior Report do not indicate that he was denied due process during the hearing itself and for that reason do not support his application with regard to merit. Similarly, while the refusal to permit Claimant to introduce evidence on his behalf may constitute a violation sufficient to support an action in the Court of Claims, Claimant has only set forth bald conclusory allegations in this regard. He has failed to specify what he was prevented from introducing and how this was relevant and material to the hearing. This, too, is insufficient to demonstrate the merit of his proposed claim.

However, Claimant has alleged that the hearing officer was not fair and impartial because he was involved in the investigation of the incident. Defendant does not refute this allegation, it merely argues that Claimant has not come forward with sufficient evidence to support this theory. While the standard referred to above for establishing merit in a late claim application clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a claimant to overcome all objections, nor does it suggest that the Court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 ).

I find that if this allegation is indeed true, then the hearing was conducted in violation of 7 NYCRR § 254.1 which prohibits an investigating officer from conducting the subsequent disciplinary hearing. Therefore, I find that, for the purposes of this application, Claimant has met the threshold for establishing that his claim has the appearance of merit.

Upon reviewing and balancing all of the factors enumerated in CCA § 10(6), I find that they weigh in favor of granting Claimant's motion for permission to file a late claim. Based upon the foregoing it is hereby:

ORDERED, that Claimant's motion for permission to file a late claim in this matter is granted. Claimant is directed to file and serve a claim identical to the proposed claim submitted in support of this motion except that the claim filed shall only assert the failure of the hearing officer to be fair and impartial; and to do so in conformance with the requirements of CCA §§ 10, 11, and 11-a within sixty (60) days after this order is filed.

March 19, 2003
Rochester, New York

Judge of the Court of Claims

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