Movant's application for an order permitting service and filing of a late claim
pursuant to Court of Claims Act § 10 (6) is denied. The proposed claim
submitted with the motion papers seeks unspecified damages for emotional and
financial harm arising out of the alleged negligent release of a former inmate
who movant alleges poses a threat to her physical safety.
The proposed claim (movant's Exhibit D) alleges that following his conviction
for an assault
perpetrated upon the claimant
Aecio da Silva (a/k/a/ Aecio Silva) was sentenced to an unspecified term of
imprisonment with the New York State Department of Correctional Services (DOCS)
and that prior to May 27, 2003 da Silva was housed at Clinton Correctional
Facility (Clinton) at Dannemora, New York
Movant further alleges in the proposed claim that da Silva was an illegal alien
from Brazil and was the subject of an order of deportation issued by the
of Immigration and Naturalization Services for the
United States Government
According to the proposed claim in early 2003 claimant was notified by "the
parole board of the New York State Department of Corrections" that da Silva was
scheduled to be released from prison following a parole hearing. She
purportedly responded to the notice by telephoning parole officer Deborah
Stewart to remind her of da Silva's outstanding deportation order. She
allegedly was assured by Stewart that the deportation order was in place and
that the notification of da Silva's release had been sent in error. It is
further alleged that Ms. Stewart informed the claimant that "da Silva would
never see the light of day in the United States".
On June 6, 2003, movant was informed by Assistant District Attorney Evan
Williams, the individual that originally prosecuted Mr. da Silva, that da Silva
had been released from custody despite the INS order of deportation. The
proposed claim relates that she telephoned the Superintendent of the Clinton
who apologized for "the
'error' in releasing da Silva from prison rather than holding him for
deportation". The claim alleges that da Silva had been transported to the Erie
County Sheriff's Department for placement in a men's shelter in Buffalo and that
when DOCS attempted to locate da Silva it discovered that he had never actually
checked into the shelter but instead had obtained bus fare to New York City
where movant resides. Despite efforts to locate him he remained at large as of
the date of movant's application.
Claimant states in her affidavit in support of the motion that since his
release da Silva has attempted to contact her by regular mail and email and that
this has caused her to suffer great emotional damage. She allegedly lives in
fear of being assaulted, attacked or killed by da Silva. Movant plans to leave
her neighborhood, enter a shelter for victims of domestic violence, conceal her
identity and leave her family and friends to avoid the continued threat posed by
The defendant opposed the motion by affidavit of defense counsel and the
affidavits of James Berbary, Superintendent of Collins Correctional Facility
(Collins) and Susan Wilson, an Inmate Records Coordinator II at Collins on May
27, 2003. Berbary categorically denies ever having had a telephone
conversation with Luisa Santos as alleged in the proposed claim. Moreover, he
alleges that on May 27, 2003 the inmate records coordinator properly processed
the release of inmate da Silva to the Erie County Sheriff's Office subject to a
bench warrant issued out of the Superior Court Vicinage of Union County, New
Jersey dated 12/11/98 (defendant's Exhibit B) and a warrant issued by the
Immigration and Naturalization Service (INS). Copies of both warrants were
allegedly delivered to an Erie County Sheriff's Deputy, Gino Nati, who signed
for them (defendant's Exhibit C).
Berbary alleges that da Silva's release to the Erie County Sheriff's Office was
performed in accordance with all applicable statutes, rules, regulations and
DOCS directives, none of which were cited in his affidavit.
Susan Wilson, the inmate records coordinator at Collins, asserts in her
affidavit that on May 27, 2003 da Silva was paroled to the custody of the Erie
County Sheriff's Office and that copies of the aforementioned warrants were
received and signed for by Erie County Sheriff's Deputy Gino Nati. The affiant
alleges that on June 9, 2003 her office received an inquiry from Deputy Kuna of
the Erie County Sheriff's Office concerning whether the transport officer had
received a copy of the INS warrant when da Silva was picked up. Wilson assured
Kuna that the warrants had been provided and faxed to him a copy of the receipt
signed by Deputy Nati.
Wilson also received a phone call on June 9, 2003 from Ms. Santos during which
she advised movant that da Silva had been appropriately released by DOCS to the
Erie County Sheriff's Office along with the INS and New Jersey Superior Court
warrants. She admitted to no further communications with the movant. Like
Berbary's affidavit the affidavit of Wilson alleged without specific citation
that da Silva's release was done in accordance with all applicable statutory
procedures, rules, regulations, IRC manuals and DOCS directives.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the
following factors: "whether the delay in filing the claim was excusable;
whether the state had notice of the essential facts constituting the claim;
whether the state had an opportunity to investigate the circumstances underlying
the claim; whether the claim appears to be meritorious; whether the failure to
file or serve upon the attorney general a timely claim or to serve upon the
attorney general a notice of intention resulted in substantial prejudice to the
state; and, whether the claimant has any other available remedy".
The first issue for determination upon a late claim motion is whether the
application is timely. Since the proposed claim asserts a negligence cause of
action, the three year Statute of Limitations set forth in CPLR § 214
applies and the motion is properly before the Court.
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965), and the statutory factors are not exhaustive or one factor
controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The
most important factor is whether the potential claim has merit, as it would be a
futile exercise to permit litigation of a clearly baseless lawsuit (Savino v
State of New York, 199 AD2d 254).
One of the excuses advanced for the failure to timely serve and file a claim
with respect to the May 27, 2003 release of movant's assailant is movant's
ignorance of the Court of Claims Act's legal requirements. Ignorance of the law
is not an acceptable excuse (Griffin v John Jay Coll., 266 AD2d 16). It
is also alleged that movant's ability to think clearly was impaired during the
first 90 days following accrual of the claim. Movant offered no proof of a
mental or physical disability except her own self-serving, conclusory statements
and those of a social worker (who averred that she had been employed full time
at a crime victim's treatment center for only six months at the time she
provided her affidavit). That affidavit contained no other details of the
affiant's education, training or clinical experience and, therefore, her ability
to render an appropriate diagnosis of movant's alleged disability is suspect
(see, Karasek v LaJoie, 92 NY2d 171; see also, People v
Scala (Matthew), 128 Misc 2d 831). This factor weighs against granting the
The intertwined issues of notice, opportunity to investigate and prejudice to
the State will be considered together. The defendant's opposition to the motion
demonstrates that movant contacted DOCS as early as June 9, 2003, thirteen days
after da Silva was released to the custody of the Erie County Sheriff's Office.
While she does not allege that she threatened suit as a result of the alleged
wrongful release of Mr. da Silva, this notice afforded the defendant an
opportunity to investigate the circumstances surrounding his release to
determine whether or not the State might in some way be at fault. The State has
not alleged prejudice resulting from movant's delay. Accordingly, these factors
weigh in favor of the movant.
As to the appearance of merit, the movant must only demonstrate that the
proposed claim is not "patently groundless, frivolous or legally defective" and
"there is a reasonable cause to believe a valid cause of action does exist"
(Rosenhack v State of New York, 112 Misc 2d 967, 969, 970).
First, the movant does not allege that the defendant was negligent in granting
da Silva parole. Parole having been granted, the Department of Corrections was
required to release da Silva. The proposed claim contends that the release of
da Silva was negligent because it was in contravention of "the standard
procedure in cases involving an order of deportation [which] is for the prisoner
to be held for deportation or to be picked up by the INS". Movant does not
point to the violation of any specific statute, rule or regulation either in the
proposed claim or in support of the instant motion. Nor was any proof received
which refutes the defendant's assertion that da Silva was properly released to
the custody of the Erie County Sheriff to be held pending extradition.
Defendant's proof appears to establish that both the New Jersey and INS warrants
were provided the Sheriff upon transfer of Mr. da Silva.
Thus, even assuming arguendo some duty by the defendant to the claimant, the
movant has not alleged facts which would support a finding that any such duty
was breached. Furthermore, there are no allegations of threats or other conduct
by which the State should have been aware that the release of Mr. da Silva posed
a danger to the movant. Nor is there any evidence which reasonably suggests
that the defendant knew or should have known that the Sheriff, possessed of both
the New Jersey and INS warrants, would release Mr. da Silva and that da Silva
would abscond. Of course, this Court has no jurisdiction to decide cases
involving the alleged negligence of local officers who are not State employees
(see, Whitmore v State of New York, 55 AD2d 745; Isereau v
State of New York, 207 Misc 665; Stacchini v State of New York, Ct
Cl, October 23, 2001, UID # 2001-028-568, [Claim No. None, Motion No. M-63875]
Sise, J., unreported).
Finally, the proposed claim alleges that the movant "has suffered great
emotional damages, lives in fear of being assaulted or attacked or killed by the
prisoner at large." As such, the claimant seeks to recover damages for
emotional injuries attendant to the allegedly negligent release of Mr. da Silva.
Consequential emotional injuries are not compensable under the laws of this
state (Kennedy v McKesson Co., 58 NY2d 500; Nadal v State of New
York, 110 AD2d 890).
Accordingly, the proposed claim appears to be of dubious merit.
In the absence of a reasonable excuse for the failure to timely serve and file
a claim and in light of the highly questionable merit of the proposed claim, the
court declines to exercise its discretion to permit the filing of a late claim
(Gonzalez v State of New York, 299 AD2d 675; Perez v State of New
York, 293 AD2d 918).
As to the final factor, it appears that movant may have another remedy in the
form of a lawsuit against the Erie County Sheriff's Department.
Accordingly, movant's application for late claim relief is denied.