New York State Court of Claims

New York State Court of Claims

BONACCI v. THE STATE OF NEW YORK, #2003-032-109, , Motion No. M-67164


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:
Anthony Bonacci, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Belinda A. Wagner, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
December 12, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's proposed claim alleges that on November 4, 2002, at Upstate Correctional Facility, he was assaulted by another inmate. The State's alleged liability for movant's injuries is premised on, among other things, its failure to protect him from the foreseeable risk of harm from other inmates.
This motion was brought less than one year after the proposed claim arose, and a like action against a citizen would not be barred by the applicable statute of limitations (CPLR 214). In determining a motion for permission to file a late claim, the Court must consider, among
other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: 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 to be meritorious; 5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and 6) whether the claimant has another available remedy. The Court in the exercise of its discretion balances these factors. The presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]).

Movant failed to timely initiate an action in this court because he believed that he had properly instituted the action when he filed and served Claim No. 107191. He had failed, however, to comply with the time and service requirements of section 10 of the Court of Claims Act, and that claim was dismissed in June 2003 (Motion No. M-66600, Hard, J.). Ignorance of the law, on the part of either a prospective litigant or his or her counsel, does not excuse delay in complying with the time requirements of the Court of Claims Act (see, e.g., Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854; Sevillia v State of New York, 91 AD2d 792 [3d Dept 1982]).

Movant asserts that the State had notice of the essential facts constituting the claim because the November 4, 2002 incident was investigated at the time it occurred. Commendably, counsel for defendant concedes that this is so; that the State had adequate opportunity to investigate the underlying matter; and that defendant would not be substantially prejudiced by the passage of time if the requested relief were granted. It also appears that movant has no available remedy against any party other than the State.

With respect to the apparent merit of a proposed claim, the burden is on movant to establish that it is not patently groundless, frivolous, or legally defective and 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 1997]). Permitting a defective claim to be filed, even if the other factors in Court of Claims Act § 10(6) support the granting of a motion, would be meaningless and futile (Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967 [Ct Cl 1982])
The proposed claim's only factual statement setting forth the events from which the cause of action arises is the following: "At the time and place above mentioned the claimant without any negligence on his part was falsely charged with fighting where it was self defense of an attacker [and] justified uses of force" (proposed claim, ¶4).
Allegations based solely on vague, conclusory and overly general statements are not sufficient to demonstrate the requisite degree of merit (Klingler v State of New York, 213 AD2d 378 [2d Dept 1995]; Calco v State of New York, 165 AD2d 117 [3d Dept 1991], appeal denied 78 NY2d 852). And, in fact, such statements would not meet the pleading requirements of Court of Claims Act §11(a) (Heisler v State of New York, 78 AD2d 767 [4th Dept 1980]; Patterson v State of New York, 54 AD2d 147 [4th Dept 1976], affd 45 NY2d 885; see also CPLR 3013). In order to establish that a proposed claim has the appearance of legal merit, there must be factual allegations that: (1) identify the particular act or omission on which the State's liability is premised, and (2) establish the causal connection between that alleged wrong and the claimant's injury, and those allegations must be sufficiently clear to apprise the State of the nature of the complaint against it (see generally, Berry v State of New York, 115 AD2d 153 [3d Dept 1985]; Sevillia v State of New York, 91 AD2d 792 [3d Dept 1982]).
Pleading standards do not necessarily decide the issue and in determining whether a proposed claim appears to be meritorious, the Court is to consider the entire record, including any affidavits or exhibits (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11, supra). The only exhibits presented here, however, are attached to movant's affidavit and do not assist him in meeting the burden imposed by the statute. One of the exhibits is an inmate misbehavior report, relating to the November 4, 2002 incident and contains the following statement by the charging officer:
Based upon my interview with you, Inmate Bonacci [DIN number], you were involved in a cell fight with Inmate Brundige [DIN number]. You stated to me that you hit Inmate Brundige several times whereas [sic] Brundige fell to the floor and into the cell door. Injuries sustained to you also conclude that you were involved in a cell fight.
This document does not provide any support for the conclusion that movant's injuries were caused by the State's negligence.
Because the proposed claim lacks sufficient appearance of merit to warrant granting the requested relief, the Court exercises its discretion to deny the motion.

December 12, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on movant's motion for permission to file an untimely claim
1. Notice of Motion and Supporting Affidavit of Anthony Bonacci, pro se, with annexed Exhibits and Proposed Claim

2. Affirmation in Opposition of Belinda A. Wagner, Esq. AAG, with annexed Exhibit