New York State Court of Claims

New York State Court of Claims

DAVID v. STATE OF NEW YORK, #2004-018-329, Claim No. NONE, Motion No. M-68650


Synopsis


Upon balancing all of the factors in Court of Claims Act §10(6), this Court DENIES Movant's motion to permit the late filing and serving of the proposed claim.

Case Information

UID:
2004-018-329
Claimant(s):
LENNOX DAVID a/k/a RENWICK WILLIAMS
Claimant short name:
DAVID
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-68650
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
LENNOX DAVID Pro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 4, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Movant brings a timely motion seeking permission to file a late claim pursuant to Court

of Claims Act § 10(6)(CPLR 214[5]). Defendant opposes the motion.[1]

Court of Claims Act § 10(6) requires that a proposed claim be submitted with a late claim application. Here, Movant has attached a completed "Notice of Intention" form. Presumably, Movant intended this to be his proposed claim, in any event the Court will treat it as such for purposes of this motion.

Movant alleges that the claim arose on December 22, 2003, when he wrote a grievance complaint. He alleges in substance that he has been subjected to secondhand smoke from inmates using cigarettes in the prison dormitories at locations and times that are unauthorized, despite the indoor non-smoking policy. Movant argues that separate rooms with proper ventilation should be built on the back of the bathrooms, or the correctional facility should stop selling cigarettes. Movant alleges he has suffered injuries from his exposure to this secondhand smoke.

On an application for permission to file a late claim the Court must give consideration to six factors: (1) whether there is a reasonable excuse for the delay in filing the claim; (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a notice of intention resulted in substantial prejudice to the State; (6) whether there is any other available remedy, and any other relevant factors (Court of Claims Act §10[6]). There is no one factor that is determinative, rather it is a balancing of all of the factors that may warrant granting the application (Bay Terrace Cooperative Section IV, Inc., v New York State Employees' Retirement System, Policemen's and Firemen's Retirement System, 55 NY2d 979; Ledet v State of New York, 207 AD2d 965).

The first factor, is whether the delay in filing the claim is excusable. Movant asserts that the delay is excusable because he is not a lawyer, had no access to legal counsel during the statutory period and didn't know that he could take this issue to court. These are not acceptable excuses (Sandlin v State of New York, 294 AD2d 723; Galvin v State of New York, 176 AD2d 1185; LaBar Truck Rental v State of New York, 52 AD2d 1007). This factor weighs against granting Movant permission to file a late claim.

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Movant asserts that the State had notice of the events because he filed a grievance. Defendant acknowledges an administrative review of a grievance, but still, albeit via an attorney's affirmation, denies notice, and an ability to investigate maintaining that prejudice will result if this late claim application is granted.

Although Movant did not provide copies of the grievance he filed or the responses received, a written grievance raising issue with his exposure to secondhand smoke, where Defendant has acknowledged that Movant grieved this concern, would place the State on notice of the essential facts underlying this claim, provide an opportunity to investigate and eliminate any prejudice. These factors weigh in favor of granting Movant's application.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. A proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11). Movant seeks to interpose a claim for damages from his exposure to secondhand smoke while an inmate in a State correctional facility. An inmate at a correctional facility has no private right of action for exposure to secondhand smoke, because the State does not have a duty to provide a smoke-free environment to inmates in its correctional institutions (Denis v State of New York, Ct Cl, Midey, J., June 19, 2003, Claim No. 107337, Motion No. M-66590, UID# 2003-009-23; Johnson v State of New York, Ct Cl, Corbett, J., February 14, 2003, Claim No. 106627, Motion No. M-65873, unpublished; Kroemer v State of New York, Ct Cl, Minarik, J., September 9, 2002, Claim No. 99532, Motion No. M-64825, UID # 2002-031-034). As a result, Movant's proposed claim lacks the appearance of merit and this factor must weigh against granting the motion.

The final factor is whether the movant has any other available remedy. Movant may have a potential remedy in federal court (see Helling v McKinney, 509 US 25, 35, 113 S Ct 2475 [1993]).

Accordingly, upon balancing all of the factors in Court of Claims Act §10(6), this Court DENIES Movant's motion to permit the late filing and serving of the proposed claim.


October 4, 2004
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion...................................................................................................1


"Affidavit" of Lennox David a/k/a Renwick Williams, in support

with attachments........................................................................................2


Affirmation of G. Lawrence Dillon, in opposition................................................3


"Motion of Answer to the Defendant's Opposing Motion" of Lennox David

in support....................................................................................................4


[1]Movant submitted an untimely reply before this decision was finalized. The Court has received the document but adheres to its decision.