Correspondence dated March 19, 2004 from claimant, with Exhibits 5
Affidavit (in Opposition), from Gregory A. Gates, Esq. 6
Affidavit in Opposition, from Michael C. Rizzo, Esq., Assistant Attorney
Answering Affidavit (First), from Claimant 8
Answering Affidavit (Second), from Claimant, with Exhibits 9
In his proposed claim, claimant seeks damages from the various named defendants
for alleged violations of his Constitutional rights, including a violation of
the 8th Amendment, based upon events which occurred and actions taken by the
various named officers while claimant was incarcerated at the Cortland County
As set forth in the caption herein, claimant has named as defendants the
Sheriff of Cortland County, together with several county officers of the
Cortland County Jail. Pursuant to the provisions of Court of Claims Act §
9(2), the jurisdiction of the Court of Claims is limited to those claims
involving alleged torts committed by State officers or employees within the
scope of their employment. It is well settled, however, that police officers of
municipalities other than the State are viewed as local officers, and not State
employees, due to the "source of their appointment and the local limitation of
their powers" (Fishbein v State of New York, 282 App Div 600, 603).
Accordingly, such officers are not State officers, and the State may therefore
not be held liable for their actions. Accordingly, any allegations of
misconduct by the various named officers of Cortland County set forth in the
proposed claim will not be considered by this Court in determining whether
claimant should be allowed to serve and file his late claim.
Additionally, and as noted above, claimant seeks damages for alleged violations
of federal Constitutional rights, including alleged violations of the 8th
Amendment. It is equally well settled, however, that the Court of Claims does
not have jurisdiction to hear claims alleging violations of federal
Constitutional rights (Thomas v New York Temporary State Commission on
Regulation of Lobbying, 83 AD2d 723, affd 56 NY2d 656). As a result,
any such claims seeking damages for such violations will also not be considered
by the Court in this application.
As a result, and after an examination of the proposed claim, the only potential
basis for State liability arises from the allegations made by claimant against
the State Commission of Corrections. In his proposed claim, claimant alleges
that the Commission did not hold "an investigation into the alledged [sic] acts
the Claimant complained about in his letters to the Commission, and for sending
the Claimant's letter back to the Defendant's [sic]" (See Item 3, Proposed
Claim, p 4 "CRUEL AND UNUSUAL PUNISHMENT").
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 asserts that his failure to timely serve and
file his claim was excusable, since he was attempting to resolve the matter,
apparently without resorting to litigation. Without more, however, such an
excuse is insufficient to justify a failure to timely file and serve a claim,
and is tantamount to ignorance of the law, which is not an acceptable excuse for
the delay (Matter of E.K. v State of New York, 235 AD2d 540). The Court,
therefore, finds that claimant has not provided an acceptable excuse for his
failure to timely serve and file his claim.
The factors of notice, opportunity to investigate, and substantial prejudice
will be considered together. Claimant contends that the State had notice of
the essential facts constituting this claim since he first appealed to the
Commission of Corrections in May, 2003, and that he had written numerous letters
to the Attorney General regarding the contentions set forth in his proposed
claim. The Court must believe, however, that the Commission of Corrections
receives a vast number of pieces of correspondence regarding the administration
of correctional facilities, and cannot be expected to presume that each and
every item received might potentially provide the basis for a separate civil
action against it. The Court therefore finds that the State did not have any
prior notice that an action might be commenced in this matter, and without such
notice, there was certainly no opportunity for the State to investigate a
potential claim. Additionally, without any such notice or opportunity to
investigate, and since the proposed claim involved events and actions primarily
occurring at the Cortland County Jail (for which this Court has previously
stated herein that the State has no potential liability), the Court finds that
the State would be substantially prejudiced should it have to defend any such
The next factor, often deemed the most critical, is whether the proposed claim
has the appearance of merit. If claimant cannot establish a meritorious claim,
it would be an exercise in futility to grant a late claim application (Savino
v State of New York, 199 AD2d 254; Prusack v State of New York, 117
AD2d 729). In order to establish a meritorious cause of action, claimant has
the burden to show that the proposed claim is not patently groundless,
frivolous, or legally defective, and that there is reasonable cause to believe
that a valid claim exists (Matter of Santana v New York State Thruway
Authority, 92 Misc 2d 1).
As previously stated herein, the claimant contends that the Commission of
Corrections failed to investigate allegations made by the claimant contained in
correspondence sent by him to the Commission. It is well settled, however, that
the State cannot be held liable for negligence in the performance of
discretionary, as opposed to ministerial, acts (Tango v Tulevech, 61 NY2d
34; see Davis v State of New York, 257 AD2d 112). In this particular
matter, the decision made by the Commission of Corrections whether to take any
action in response to claimant's correspondence is clearly a discretionary act,
involving the exercise of judgment, for which there can be no State liability.
The Court therefore finds that claimant has not established a meritorious cause
of action against the Commission of Corrections.
The Court notes that if claimant is attempting to challenge a determination
made by the Commission of Corrections, his proper remedy is through an Article
78 proceeding, which creates a potential alternative available remedy for him.
The Court may in its discretion place as much or as little weight on any of the
six factors to be considered pursuant to the statute. Under the current law
"[n]othing in the statute makes the presence or absence of any one factor
determinative" (Bay Terrace Coop. Section IV v New York State Employees'
Retirement System Policemen's & Firemen's Retirement System, 55 NY2d
979, 981) and none of the factors can require denial as a matter of law.
Accordingly, after a review of the papers submitted herein, including
claimant's proposed claim, and after weighing and considering all of the factors
set forth under Court of Claims Act, Section 10(6), it is the opinion of this
Court that claimant has not asserted a meritorious claim and that he should not
be allowed to serve and file his proposed claim.
Accordingly, it is
ORDERED, that Motion No. M-68163 is hereby DENIED.