2) Affidavit of Anthony Tislon, sworn to April 22, 2003, with attached
exhibits.This is the motion of Anthony Tislon for permission to file a late
claim, pursuant to § 10(6) of the Court of Claims Act (the "CCA"). In
his proposed claim, Mr. Tislon seeks to recover $75,000.00 for injuries he
sustained when he was assaulted by another inmate at Five Points Correctional
Facility on February 5, 2001. Claimant also alleges that Defendant negligently
failed to protect him from subsequent assaults, and that his eighth amendment
rights were violated by Defendant's deliberate indifference to his need for
safety. Finally, Claimant alleges that his right to due process was violated in
his Tier II disciplinary hearing relating to that February 5, 2001
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 Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979).
With regard to his excuse for the delay in filing, Claimant alleges that the
copy machine at Five Points Correctional Facility was broken during the last two
weeks of his two-year window to file a timely claim. While this may be true,
had Claimant not waited until the eleventh hour to file his claim, this would
not have been a problem. I find that this factor weighs in Defendant's
With regard to alternative remedies, it appears that Claimant's only means of
redress is an action against the State and this factor weighs in Claimant's
The next three factors covering notice, opportunity to investigate, and
significant prejudice are closely related and may be considered together
(Brewer v State of New York, 176 Misc 2d 337, 342). Claimant alleges
that he filed a timely notice of intention to file a claim, and that the
incident was reported, investigated, and the subject of a disciplinary hearing.
It appears that Defendant did have notice of the assault upon Claimant of
February 5, 2001, and Claimant's subsequent complaints regarding his due process
rights during the resulting disciplinary hearings. The notice of intention did
not mention any other incidents, however, and there is no indication that
Defendant had knowledge of, or the opportunity to investigate, any of the other
incidents alleged in the proposed claim. For this reason, I find that these
factors weigh in Claimant's favor only with regard to the alleged February 5,
2001 assault and the related disciplinary hearing. With regard to all other
matters alleged in the claim, these factors weigh in Defendant's favor.
With regard to merit, 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). While
the aforementioned standard on a late filing 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 at 11-12 ).
Claimant has failed to adequately explain, let alone demonstrate the merit, of
any cause of action relating to the alleged conspiracy against him stemming from
his inmate misbehavior report and his subsequent disciplinary hearing and
appeals. For this reason, this portion of his proposed claim lacks merit and is
denied. Further, although Claimant alleges that the various identified
individuals violated his eighth amendment rights, such claims are conclusory,
and Claimant has failed to allege sufficient factual support relating to these
allegations. Further, a cause of action under the Federal Constitution is not
cognizable in this Court (see Ferrer v State of New York, 172 Misc
2d 1, 5; Gill v State of New York, Ct Cl, Jan. 10, 2001, Mignano, J., UID
What remains are Claimant's alleged causes of action relating to the assault
upon him on February 5, 2001, and the hearing officer's improper refusal to let
him call witnesses at the resulting disciplinary hearing. As there has been no
opposition to these matters offered from Defendant, with regard to these
allegations only, I find that Claimant has met the threshold for establishing
his claim for negligence and denial of his due process rights at the hearing.
Of course, a greater burden rests upon Claimant to establish the merit of his
claim at trial.
Upon reviewing and balancing all of the factors enumerated in CCA § 10(6),
the Court finds 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
it shall assert only those causes of action for negligence relating to the
assault upon Claimant on February 5, 2001, and the violation of Claimant's due
process rights stemming from the denial of his requested witnesses at the
subsequent disciplinary hearing; and to do so in conformance with the
requirements of CCA §§ 10, 11, and 11-a within thirty (30) days after
this order is filed.