New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2004-009-17, Claim No. NONE, Motion No. M-67322


Synopsis


Case Information

UID:
2004-009-17
Claimant(s):
FRED BROWN
Claimant short name:
BROWN
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-67322
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
FRED BROWN, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
March 3, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant seeks permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Notice of Intention to File Claim, Negligence Tort Claim, Exhibits

1,2,3


Affirmation in Opposition, with Exhibits 4


Rebuttal to Defendant's Affirmation 5

Claimant, proceeding pro se, seeks permission to serve and file a late claim based upon several different incidents allegedly occurring while claimant was incarcerated at Mohawk and Mid-State Correctional Facilities. In his proposed claim, claimant has alleged five separate and distinct causes of action, each of which will be considered herein.

Initially, however, defendant requests the Court to deny claimant's application based on the fact that the proposed claim does not contain an appropriate verification. Defendant contends that a properly verified claim is a jurisdictional prerequisite to any consideration of the motion herein (see, Martin v State of New York, 185 Misc 2d 799). The Court of Appeals has recently addressed this issue, however, and has determined that an unverified or defectively verified claim should be treated in the same manner as an unverified or defectively verified complaint under CPLR 3022. As a result, an unverified or defectively verified claim does not create a non-waivable jurisdictional defect depriving this Court of jurisdiction (Lepkowski v State of New York, 1 NY3d 201).

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[6]). 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).

With regard to excuse, claimant contends that since he is not a lawyer, he did not have access to either legal counsel or the prison law library during the statutory period for serving and filing his claim, due to illness caused by an incident underlying this claim.

It is well-settled, however, that incarceration in and of itself does not provide a sufficient excuse for failing to timely serve and file a claim (Plate v State of New York, 92 Misc 2d 1033). Claimant must make an affirmative showing that the circumstances of his incarceration prevented him from taking effective steps to perfect his claim (Bommarito v State of New York, 35 AD2d 458), which claimant has not done in the instant application.

Furthermore, although a claimant's medical incapacity throughout the statutory period may provide a reasonable excuse for failure to timely serve and file a claim (Bloom v State of New York, 6 Misc 2d 553, affd 5 AD2d 930), such allegations of incapacity must be supported by sufficient proof of such incapacity throughout the statutory period, which claimant has also failed to do (Cabral v State of New York, 149 AD2d 453). Accordingly, the Court finds that claimant has not established an acceptable excuse for failure to timely serve and file his claim.

The factors of notice, opportunity to investigate and substantial prejudice will be considered together. Since claimant was incarcerated during the times that each of his causes of action accrued, documentation should exist (either in the form of medical reports, grievance reports, lost property claim forms, etc.) that would provide the State with essential notice regarding the different claims alleged by claimant. Even if such records exist, however, they would be insufficient to put the State on notice that there would be necessarily ensuing litigation, and therefore the Court finds that the State did not have an opportunity to investigate the facts and circumstances underlying this claim prior to receipt of this application. Be that as it may, since these records presumably still exist, the Court does not find that the State would be substantially prejudiced should it have to defend the different causes of action alleged by claimant.

It is often stated that 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, supra). 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, and as stated above, claimant has asserted five separate and distinct causes of action. In his first cause of action, claimant alleges that he suffered personal injuries based on the negligence of the State in failing to provide him with adequate medical care for treatment received by him on September 5-8, 2001, and again on March 15, 2002 and on June 15, 2002. On each of these occasions, claimant alleges that he was administered improper medication which caused his prostate to enlarge, blocking his urine passage. As a result, claimant was hospitalized and a catheter had to be inserted to permit the passage of urine. Based on these allegations, the Court finds that claimant has satisfied the minimal standard of merit for late claim applications for this cause of action (see, Matter of Santana v New York State Thruway Auth. supra).

In his second cause of action, claimant asserts a claim of negligence based upon the alleged loss of certain items of personal property occurring on or about September 8, 2001. This cause of action also includes a claim seeking damages of $5,000.00 for mental anguish.

In order to proceed with a claim for injury to or loss of personal property, an inmate is first required to exhaust the administrative remedies for personal property claims established by the Department of Correctional Services (see, Court of Claims Act § 10[9]). Claimant has failed to provide any documentary evidence to establish that he did in fact exhaust administrative remedies for this claim, and therefore has not established that he is entitled to institute a claim for such loss. The Court therefore finds that claimant has not established the appearance of a meritorious claim for this cause of action.

In his third cause of action, claimant alleges that he was subjected to harassment and abuse while assigned to work as a law clerk at the library at Mohawk Correctional Facility. He seeks $200,000.00 in damages for emotional distress and mental anguish, as well as $1,000.00 in loss of earnings. This cause of action allegedly accrued on December 12, 2001. Although claimant states that this cause of action is for negligent conduct on the part of the State and its employees, the allegations of harassment constitute, in fact, an intentional tort. Intentional torts are governed by the provisions of CPLR § 215, which requires any such action to be commenced within one year from the date of accrual. In this matter, since claimant's cause of action allegedly accrued on December 12, 2001, and his application for a late claim was not served until at least August 15, 2003 (see affidavit of service attached to Items 1,2,3), the application for late claim relief was not made within the applicable statute of limitations for intentional torts. Accordingly, this cause of action is jurisdictionally defective and there is no basis on which this Court may grant late claim relief for this intentional tort.

Claimant's fourth cause of action seeks damages based upon the State's failure to place claimant in a bottom bunk on February 25, 2003, while claimant was incarcerated at Mid-State Correctional Facility. Claimant contends that he was only provided with a bottom bunk after he had filed a grievance, and that he seeks damages for the time in which he was denied a bottom bunk assignment, which, according to claimant, was approximately one week. From an examination of claimant's papers, it appears that claimant was provided with a bottom bunk assignment after he filed his grievance and that, during the intervening period, claimant did not suffer any personal injuries from his top bunk assignment. It further appears that claimant is seeking damages for emotional distress and mental anguish in the amount of $50,000.00. Since claimant succeeded in obtaining an assignment for a bottom bunk through the facility grievance procedure, and since he did not suffer any physical injuries as a result of his assignment to a top bunk, the Court finds, for purposes of this application, that claimant has not asserted a meritorious claim.

In his fifth cause of action, claimant seeks damages in the amount of $169.00 for damages to his typewriter, which allegedly occurred while claimant was confined to the Special Housing Unit at Mid-State Correctional Facility. Claimant also seeks $1,000.00 in lost wages for this cause of action. Claimant did file an administrative claim for the damages to his typewriter on February 6, 2003, and this claim was denied on February 17, 2003. Based upon the papers submitted in connection with this application, however, it does not appear that claimant initiated any appeal of this administrative decision. As previously stated herein, Court of Claims Act § 10(9) requires that an inmate must first exhaust the personal property claims administrative remedy prior to instituting any claim for damages to or loss of personal property. There is no evidence before the Court that claimant exhausted his administrative remedies, and the Court therefore finds that claimant has not established a meritorious claim for this cause of action.

It does not appear that claimant has any other available remedy for the damages sought herein on the various causes of action.

Based on the foregoing, and upon weighing and considering all of the factors set forth in Court of Claims Act § 10(6), and after finding that claimant has not established the appearance of merit for his second, third, fourth, and fifth causes of action, it is the opinion of this Court that claimant should be allowed to file his proposed claim, limited to the extent that such claim seeks damages for negligent medical care alleged in his first cause of action.

Accordingly, it is

ORDERED, that Motion No. M-67322 is hereby GRANTED, in part, to the extent that claimant is permitted to serve and file his claim, limited to a claim asserting negligence for inadequate care as set forth in the first cause of action of claimant's proposed claim. Claimant is directed to serve his claim upon the Attorney General and to file the claim with the Chief Clerk of the Court of Claims within 45 days from the filing date of this decision and order in the Clerk's office, with such service and filing to be in accordance with the requirements of Court of Claims Act §§ 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.


March 3, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims