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
(Ct Cl), Read, P.J., June 27, 2000, [Motion No. M-61368], UID No.
. 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
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
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.