New York State Court of Claims

New York State Court of Claims

VILLENA v. THE STATE OF NEW YORK, COMMISSIONER GOORD, SUPERINTENDENT OF CAMP GABRIELS, #2003-032-129, Claim No. NONE, Motion No. M-67212


Synopsis


Case Information

UID:
2003-032-129
Claimant(s):
DAVID VILLENA
Claimant short name:
VILLENA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, COMMISSIONER GOORD, SUPERINTENDENT OF CAMP GABRIELS
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-67212
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
David Villena, pro se
Defendant's attorney:
Hon. Eliot Spitzer, Esq., NYS Attorney General
By: Paul F. Cagino, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
December 29, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Movant's proposed claim alleges that on April 18, 2003, at Camp Gabriels Correctional Facility, he experienced a sharp pain in the area of his testicles while completing a work assignment. He reported this to the correction officer in charge and was transported to the medical unit, where he was seen by a physician. The doctor indicated that movant should rest and that he would be called in for a follow-up examination on April 22nd. Movant did not receive a call to the medical unit, however, and when he reported this to a correction officer, he states that he was ignored. The officer then directed movant to return to his work scrubbing baseboards. When movant refused to comply, he was taken to the medical unit. Once there, movant alleges, the doctor "gave me a hard time," and he states that no further treatment has been provided. In his affidavit in support of the motion, movant refers to subsequent events, but allegations on these events are not contained in the proposed claim.

This motion was brought less than a year after the date of accrual 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. It is well accepted that 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 does not offer any excuse for his delay in commencing this action other than his ignorance of the law and the fact that he is incarcerated. Ignorance of the law, specifically the practice requirements of the Court of Claims Act does not excuse a litigant's delay (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]). In addition, incarceration is not a disability per se (see Civil Rights Law §79), and an inmate who claims he was denied access to the law library or other impediments must make an affirmative showing that the circumstances of his incarceration prevented taking effective steps (Bommarito v State of New York, 35 AD2d 458 [4th Dept 1971]).

Movant makes no meaningful assertion that the State had notice of the essential facts constituting the claim or that correction officials had an opportunity to investigate those underlying facts. Permitting the proposed claim to be filed, therefore, could result in some prejudice to the State. Most significantly, movant has a more appropriate remedy available to him in the form of an Article 78 proceeding, particularly since it appears that the primary relief he seeks is treatment for his injury.

The most critical factor in determining whether permission to late file should be granted is the apparent merit of the proposed claim, for permitting a defective claim to be filed 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]). In order to meet this requirement, a movant must establish that the proposed claim 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 1977]).

In the proposed claim submitted with this motion, movant has not clearly identified the wrongful acts of the State on which this claim is based. More significantly, as is noted above, it appears that claimant's primary goal is to obtain appropriate treatment for his groin injury. The Court of Claims does not have jurisdiction to grant such relief.

Consideration of the factors set forth in Court of Claims Act § 10 (6) indicate that claimant is not entitled to the requested relief, and consequently the motion is denied.


December 29, 2003
Albany, New York

HON. JUDITH A. HARD
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 David Villena, pro se

2. Affirmation in Opposition of Paul F. Cagino, Esq., AAG

Filed papers: None