New York State Court of Claims

New York State Court of Claims

WHITLEY v. THE STATE OF NEW YORK, #2003-031-088, Claim No. None, Motion No. M-66817


Synopsis


Case Information

UID:
2003-031-088
Claimant(s):
ERNEST R. WHITLEY
Claimant short name:
WHITLEY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-66817
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
ERNEST R. WHITLEY, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: WILLIAM D. LONERGAN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 13, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 3, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed May 15, 2003;
2. Claimant's unsworn, undated "Affidavit," filed on May 15, 2003, with attached exhibits;
3. Affidavit of William D. Lonergan, Esq., sworn to May 29, 2003, with attached exhibit. Ernest R. Whitley brings this motion for permission to file a late claim pursuant to §10(6) of the Court of Claims Act (the "CCA"). In his proposed claim, Mr. Whitley alleges that he was assaulted by correction officers at the Erie County Correctional Facility on August 19, 2002.

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 and Firemen's Retirement Sys., 55 NY2d 979).

Defendant points out that Claimant has failed to adequately address these issues and has merely set forth in a conclusory manner that the issues weigh in Claimant's favor.

More importantly, Defendant correctly points out that the Erie County Correctional Facility is neither owned nor operated by the State. Defendant asserts that any viable cause of action, therefore, lies against the County of Erie, as the injuries complained of occurred at the hands of Erie County employees on Erie County property. I agree.

The Court of Claims is a court of limited jurisdiction with power to hear claims only against the State and certain public authorities (CCA § 9). This Court does not have jurisdiction over and may not entertain a claim against either the individuals identified in the proposed claim nor the county by which they were employed (see Whitmore v State of New York, 55 AD2d 745, 746, lv denied 42 NY2d 810; Jones v State of New York, 69 Misc 2d 1034).

For the reasons set forth above, I find that Claimant has failed to demonstrate that his proposed claim has merit. Claimant's motion for permission to file a late claim is denied.

November 13, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims