Motion for Permission to File a Late Claim, Affidavit in Support of Motion,
Proposed "Notice of Intention File Claim" 1,2,3
Affirmation in Opposition 4
Claimant, proceeding pro se, seeks permission to serve and file a late
claim, apparently based upon his confinement to the Special Housing Unit at
Oneida Correctional Facility on June 17, 2003. Confinement in the Special
Housing Unit at Oneida Correctional Facility apparently continued until July 14,
2003, when claimant was then transferred to Mid-State Correctional Facility,
where he was confined to the Special Housing Unit at that facility until
September 5, 2003.
This application, however, suffers from certain procedural and legal defects.
Claimant has failed to submit a notice of motion with his application, as
required by § 206.8(a) of the Uniform Rules for the Court of Claims. His
failure to include the required notice of motion is a fatal defect to this
application (J.A. Valenti Elec. Co. v Power Line Constructors, 123 AD2d
604; Vanek v Mercy Hosp., 135 AD2d 707).
Additionally, claimant's papers include a proposed notice of intention, but do
not include a proposed claim, as required by Court of Claims Act § 10(6).
Failure to include a proposed claim also requires this Court to deny his
application (see, Grant v State of New York
, Ct Cl, unreported decision
and order dated September 6, 2000, Read P.J., Motion No. M-61919, UID No.
Both of these defects, in and of themselves, therefore require denial of this
In the interests of judicial economy, however, the Court has also considered
the merits of claimant's application, based upon the allegations which can be
gleaned from claimant's moving papers and defendant's response.
The Court, in its discretion, may authorize the filing of a late claim "at any
time before an action asserting a like claim against a citizen of the state
would be barred under the provisions of article two of the civil practice law
and rules" (Court of Claims Act § 10). In order to determine an
application for permission to serve and file a late claim, the Court must
consider, among other relevant factors, the six factors set forth in §
10(6) of the Court of Claims Act. The factors set forth therein are: (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 meritorious; (5) whether substantial prejudice
resulted from the failure to timely file and the failure to serve upon the
Attorney General a timely claim or notice of intention to file a claim; and (6)
whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim (see,
Matter of Gavigan v State of New York, 176 AD2d 1117).
While the presence or absence of any one factor is not dispositive (see, Bay
Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's
and Firemen's Retirement Sys., 55 NY2d 979), the most critical factor is the
apparent merit of the proposed claim (see, Plate v State of New York, 92
Misc 2d 1033). A claimant need only 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 (see, Matter
of Santana v New York State Thruway Auth., 92 Misc 2d 1). If a
claimant cannot meet this low threshold and the claim is patently without merit,
it would be meaningless and futile for the Court to grant the application even
if all the other factors in Court of Claims Act § 10(6) weighed in favor of
claimant's request (see, Savino v State of New York, 199 AD2d 254;
Prusack v State of New York, 117 AD2d 729).
In this matter, the gravamen of claimant's proposed action is that he was
confined to the Special Housing Unit unjustly, without merit. According to the
affirmation in opposition submitted by defendant's attorney, however, it appears
that claimant was originally placed in the Special Housing Unit at Oneida
Correctional Facility based upon an inmate misbehavior report, and that
confinement was continued following a disciplinary hearing held at Oneida
Correctional Facility, in which claimant was found guilty of the behavior
alleged in that report.
Claimant apparently filed an administrative appeal of this determination, and
on or about September 10, 2003 (after claimant had been released from his
confinement in the Special Housing Unit), the original decision was reversed and
the findings were expunged.
It is well established, however, that actions, including restrictive
confinement, taken against a claimant arising from disciplinary hearings in
compliance with applicable rules and regulations are entitled to absolute
immunity, due to their quasi-judicial nature (Arteaga v State of New
York, 72 NY2d 212). Based upon this privilege, set forth in Arteaga,
a claimant may not recover damages based upon allegations of wrongful
confinement for penalties and sanctions imposed in a disciplinary proceeding,
even when such decision is ultimately overturned on administrative appeal
(Melette v State of New York, 163 AD2d 703).
Claimant, therefore, has failed to assert any potentially meritorious cause of
action to satisfy the criteria of Court of Claims Act § 10(6).
Accordingly, for all of the reasons set forth herein, it is
ORDERED, that Motion No. M-67792 is hereby DENIED.