New York State Court of Claims

New York State Court of Claims

MYERS v. THE STATE OF NEW YORK, #2004-009-56, Claim No. NONE, Motion No. M-68541


Claimant's application seeking permission to serve and file a late claim was denied.

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:
Defendant's attorney:
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
September 20, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking on order permitting him 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:
"Motion for Permission to File a Late Claim", Proposed Claim, Notice of Intention to File a Claim 1,2,3

Affirmation in Opposition, with Exhibits 4

As correctly pointed out by defendant's counsel in his affirmation in opposition to this motion, claimant has failed to provide a notice of motion herein, as specifically required by § 206.8(a) of the Uniform Rules for the Court of Claims. Although claimant's failure to provide a notice of motion is sufficient, in and of itself, for this Court to deny his motion (see Becker v State of New York, Ct Cl, Collins, J., May 21, 2002, Claim No. 103881, Motion No. M-64670)[1], defendant's attorney has in fact responded to the motion on its merits. Accordingly, in the interests of judicial economy, the Court will disregard this defect and address the merits of claimant's application.

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 claimant's excuse for not having timely initiated a claim, claimant states that he was afraid to bring this claim because a correction officer had threatened him. A fear of reprisal, however, is not considered an acceptable excuse for failing to timely institute a claim (Prusack v State of New York, 117 AD2d 729).

The factors of "notice", "opportunity to investigate", and "lack of prejudice" will be considered together. In his moving papers, claimant contends that the State had notice of the essential facts constituting his claim, based upon a prior grievance filed by him at the correctional facility.

As set forth in his proposed claim, claimant alleges that a correction officer approached him in his cell at Mid-State Correctional Facility during a search of his cube area. In this search, the correction officer found a broken broom handle in claimant's pillow case. Although not mentioned by claimant in his moving papers, defendant, in its opposition papers, states that an inmate misbehavior report was filed against claimant following this discovery, which resulted in a disciplinary determination and penalty imposed against claimant. Claimant contends that the correction officer "planted" the broom handle in his pillow case, and claimant apparently filed a grievance against the correction officer. Claimant did not, however, file any administrative appeal of the determination and penalty imposed at the disciplinary hearing.

As a result of these procedures, officials at the correctional facility were certainly aware of the facts forming the basis of this claim (evidenced by the misbehavior report and disciplinary hearing). Such awareness, however, is not sufficient notice to the State that such facts might lead to a civil claim being pursued against the State in this Court. Similarly, the awareness of the facts herein certainly did not provide the State with sufficient opportunity to investigate the circumstances underlying a potential claim. Without such notice of the facts constituting the claim, or an opportunity to investigate the underlying circumstances, the State would therefore be prejudiced should the Court permit a claim to be served and filed at this date.

In order to establish a meritorious cause of action, a claimant must only 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). In his application, however, claimant has provided no information whatsoever as to the meritorious nature of his claim.

Based upon the Court's examination of claimant's proposed claim, it is difficult, if not impossible, to discern the alleged basis of liability against the State.

To the extent, if any, that claimant is challenging the misbehavior report and the penalties assessed at the subsequent administrative hearing, the law is well settled that the actions of Department of Correctional Services officials in conducting these hearings are considered quasi-judicial in nature. Any decisions made therein are therefore entitled to immunity, as long as the employees are acting "under the authority of and in full compliance with the governing statutes and regulations" (Arteaga v State of New York, 72 NY2d 212, 214).

Additionally, if claimant is alleging an intentional tort by a correction officer, it is clear that any such allegations are barred by the statute of limitations (see CPLR § 215). Pursuant to Court of Claims Act § 10(6), a late claim application must be commenced prior to the expiration of the appropriate statute of limitations for the alleged tort. In this particular matter, the statute of limitations for intentional torts are covered by CPLR § 215, which provides a one year period to institute such a claim. As set forth in his proposed claim, the alleged tort against claimant occurred on May 9, 2003. His proposed claim, however, was not verified until May 14, 2004. If based upon an intentional tort, his application for late claim relief is therefore untimely, depriving this Court of any authority to entertain such application.

Based upon all of the foregoing, therefore, the Court must find that claimant has not asserted a meritorious claim.

From the papers presented, it does not appear that claimant has any other available remedy.

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.

Therefore, after weighing and considering all of the factors under Court of Claims Act § 10(6), it is the opinion of this Court that claimant should not be allowed to serve and file his proposed claim.

Accordingly, it is

ORDERED, that Motion No. M-68541 is hereby DENIED.

September 20, 2004
Syracuse, New York

Judge of the Court of Claims

[1] Unpublished decisions and selected orders of the Court of Claims are available via the Internet at