New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2004-019-570, Claim No. NONE, Motion No. M-68750


Claimant's motion for permission to file late claim relative to various allegations regarding prison treatment 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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 31, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, seeks permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York ("State") opposes the motion.

The proposed claim consists of 21 handwritten single-spaced pages, all capitalized, containing various allegations of claimant's treatment in February and March 2003 while incarcerated at Southport Correctional Facility ("Southport"). In general terms, the proposed claim alleges that some of claimant's personal property was missing after he was placed in special housing unit; that claimant was deprived of breakfast, lunch, and/or dinner on more than one occasion; that claimant's sick call requests were denied and/or delayed despite his HIV positive status; as well as that prison officials are part of a conspiracy which infected his food and gave him an "infectious substance." (Proposed Claim, ¶ 79 ). Claimant states all of these allegations in terms of proposed constitutional tort causes of action based upon cruel and unusual punishment and lack of due process.

As a threshold issue, the court notes that it has jurisdiction to review and determine this motion since it was filed within three years from the date of these alleged incidents which is the applicable time period for constitutional tort causes of action on which this proposed claim is based. (CPLR 214 [5]; CCA 10 [6]; Brown v State of New York, 221 AD2d 681, affd 89 NY2d 172).

Turning to the substance of the motion, the factors the court must consider in determining a properly framed CCA 10 (6) motion are whether:
1. the delay in filing the claim was excusable;
2. the State had notice of the essential facts constituting the claim;
3. the State had an opportunity to investigate the circumstances underlying the claim;
4. the claim appears to be meritorious;
5. 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
6. there is any other available remedy.

Claimant's excuse for his delay appears to relate to his transfer from Southport where he alleges these matters accrued to Attica Correctional Facility. Incarceration is not an acceptable excuse. (Hall v State of New York, 85 AD2d 835). As such, this factor weighs against claimant's application.

The three factors of notice of the essential facts, opportunity to investigate, and substantial prejudice are often considered together since they involve analogous considerations. The State concludes that "[t]hese three factors combined weigh neither for or against the claimant's motion." (Affirmation of Joseph F. Romani, AAG, ¶ 8). The court will give this pro se litigant the benefit on these factors and find these three factors weigh in his favor. With respect to whether claimant has any alternate remedy, neither party argues that claimant has any other forum to bring these claims. Accordingly, this factor weighs in claimant's favor.

Finally, the court addresses whether the proposed claim appears meritorious which has been characterized as the most decisive component in determining a motion under CCA 10 (6), since it would be futile to permit a meritless claim to proceed. (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). In order to establish a meritorious claim, it is claimant's burden to show the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid claim exists. (Id. at 11).

The State's characterization of claimant's numerous allegations is apt, namely that they "[a]re rife with conspiracies, poisonings, intentional AIDS injections, and vindictive Corrections Officers who overreact to urine and garbage flinging carried out by the claimant." (Affirmation of Joseph F. Romani, AAG, ¶ 10; see also Proposed Claim, ¶ ¶ 15, 62, 75-88). In short, claimant has offered only conclusory allegations regarding the merit of his proposed claim which is insufficient to support a finding of merit. (Witko v State of New York, 212 AD2d 889, 891). Moreover, the proposed claim lacks merit to the extent that all of these allegations are couched solely in terms of constitutional torts. It is well-settled that a constitutional tort remedy will not be implied when, as is the case here, claimant's "[c]onstitutional tort allegations may be analogized to an existing common-law tort[s] for which there are adequate alternate remedies." (Augat v State of New York, 244 AD2d 835, 837, lv denied 91 NY2d 814). Clearly, the available common law remedies include claims for intentional tort and bailment. Accordingly, the court cannot find reasonable cause to believe that a valid claim exists with respect to any of these incidents.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the court finds that two of the six factors, including the all important factor of merit, weigh against claimant's request for permission to file a late claim pursuant to CCA 10 (6).

In view of the foregoing, IT IS ORDERED that claimant's motion for permission to permit the late filing and service of a claim, Motion No. M-68750, is DENIED.

August 31, 2004
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-68750, dated June 15, 2004, and filed June 25, 2004.
  2. Affidavit of Raymond Gonzalez, in support of motion, sworn to June 15, 2004, with attached exhibits.
  3. Proposed Claim, sworn to June 15, 2004.
  4. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated July 23, 2004, and filed July 27, 2004.
  5. "Reply Against Affirmation", of Raymond Gonzalez, dated July 27, 2004, and filed July 30, 2004, with attached exhibit.
  6. Letter from Raymond Gonzalez to David B. Klingaman, Chief Clerk, dated August 5, 2004, and received August 9, 2004, with attached exhibits.
  7. Letter from Joseph F. Romani, AAG to David B. Klingaman, Chief Clerk, dated August 13, 2004, and received August 16, 2004.