New York State Court of Claims

New York State Court of Claims

CABRERA v. THE STATE OF NEW YORK, #2004-019-595, Claim No. NONE, Motion No. M-69141


Claimant's motion for permission to file late claim alleging assault by correction officers; denial of medical care; and denial of death bed/funeral visit is denied in its entirety.

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:
November 22, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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

Claimant seeks permission to file a late claim including three separate causes of action described as: (1) denial of medical care; (2) guard brutality; and (3) denied death bed/funeral visit. (Claimant's Affidavit, ¶ 4).

Initially the court notes that claimant has not submitted a proposed claim with his moving papers which can be a basis in and of itself for denying this motion. (CCA 10 [6]). That having been said, however, claimant references five separate notices of intention which he served on the State. Although the claimant did not submit these notices of intention, the State has attached them with its opposing papers. (State's Exhibits A-E). These notices of intention provide the court with sufficient additional detail from which it can glean the parameters of the alleged causes of action. Accordingly, for the purposes of this motion, the court will assume that the corresponding notice of intention for each of the alleged causes of action is claimant's proposed claim. As such, State's Exhibit A and B become the proposed claim with respect to the allegations of "denial of medical care";[1] State's Exhibit C becomes the proposed claim regarding allegations of "guard brutality"; and State's Exhibit D becomes the proposed claim for "denial of death bed/funeral visit." Claimant's final notice of intention, State's Exhibit E, need not be considered separately inasmuch as it contains a summary of all the prior allegations.


As a threshold matter, the court must address whether it has the jurisdiction to review and determine this motion which is determined by whether the motion was filed within the statute of limitations period attributable to the underlying causes of action. (CCA 10 [6]). With respect to the proposed cause of action involving denial of medical care, the court notes that it has jurisdiction to review and determine that portion of the motion whether it be deemed a medical malpractice or simple negligence cause of action, since it was filed before the shorter of the two limitation periods, namely two-and-one-half years. (CPLR 214-a).

With respect to claimant's allegation of "guard brutality" it has been held that the use of excessive force by a law enforcement official in the lawful course of his/her duties has been found to support a cause of action for assault or, stated another way, an intentional tort.[2] (Stein v State of New York, 53 AD2d 988; Jones v State of New York, 33 NY2d 275). The applicable limitations period for intentional torts is one year from the date of accrual. (CPLR 215 [3]). Here, claimant alleges that he was assaulted by correction officers on June 31, 2003.[3] (State's Exhibit C). Although the court cannot determine with certainty the exact date of the alleged assault, assuming the alleged assault occurred in early June of 2003, claimant had until early June 2004 to file this motion. This motion was not filed until September 23, 2004, after the expiration of the one year period. As such, the court does not have the jurisdiction to review this motion relative to the allegations of use of excessive force by correction officers and need not address the statutory factors regarding that proposed cause of action.

Finally, with respect to the allegation of a denial of a death bed/funeral visit, there is no applicable limitations period inasmuch as no such cause of action exists as will be discussed below under the factor of merit.[4]

10 (6) Motion

The substantive factors that 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.

Whether the proposed claim appears meritorious 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, claimant must establish his proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. (Id. at 11).

The court notes that it originally adjourned this motion because claimant's affidavit referenced an "Exhibit One" allegedly consisting of related grievances but said exhibit was not attached to claimant's moving papers. The court adjourned this motion in order to provide claimant time to submit the missing exhibit to the court and the attorney general. Claimant has since submitted "Inmate Grievance Program Central Office Review Committee" (hereinafter "IGRC") memorandums dated June 12, 2003; September 3, 2003; September 24, 2003; September 1, 2004; and September 15, 2004.

Medical negligence

Claimant's proposed claim relates to his dissatisfaction with facility issued medical boots. (State's Exhibits A and B). Claimant states that he was fitted for medical boots on September 30, 2002 and November 27, 2002, but subsequently complained that they were causing pain and injury. Further, he alleges that a nurse approved his request for sick call in order to exchange those boots for sneakers, but that a correction officer later prevented him from doing so. Claimant also complains that this same correction officer began conducting unauthorized cell searches and taking his property.

It is well-settled that an application for permission to file a late claim motion sounding in medical malpractice generally requires further support in the form of an expert's affidavit of merit, for it is only through an affidavit from someone who has the qualifications to allege a deviation from generally accepted medical standards setting forth facts which establish said deviation that the court may determine the potential merit of the proposed claim. (Schreck v State of New York, 81 AD2d 882; Jolley v State of New York, 106 Misc 2d 550, 551-552). Here, to the extent that claimant has attempted to plead a medical malpractice claim based upon the improper fitting of medically required shoes or the lack of treatment thereafter, such allegations involve matters beyond common knowledge that will necessitate the input of an expert. (Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). However, claimant has not submitted an expert affidavit, but rather only his own conclusory statements that the fitting of his boots and subsequent failure to treat him or replace his boots was inadequate. (Matter of E.K. v State of New York, 235 AD2d 540, lv denied 89 NY2d 815; Dunwoody v State of New York, Ct Cl, June 26, 2000, Corbett, Jr., J., Claim No. 99581, Motion No. M-60043 [UID No. 2000-005-518]).[5] Nor has claimant established that the exception to the general rule is applicable on these facts or has he submitted any medical records whatsoever in support of his position. (Kambat v St. Francis Hosp., 89 NY2d 489). In sum, based on this record, the court finds that claimant has failed to establish that his claim relative to the proposed medical malpractice appears meritorious. Furthermore, the September 3, 2003 IGRC memo indicates that claimant signed an agreement which did not allow him to possess sneakers. Additionally, to the extent that this cause of action sounds in negligence, it fails to allege a prima facie case alleging negligence, proximate cause, or any acts of negligence. In sum, the proposed claim does not have the appearance of merit.

Death bed/funeral visit

Claimant alleges that he was denied an emergency telephone call and/or death bed visit to his sick grandmother on April 2, 2003 and then was denied the right to attend her funeral on May 31, 2003. (State's Exhibit D). It is well-settled that the decision whether to grant a funeral visit is discretionary under Section 113 of the Correction Law which states, in pertinent part, "[t]he commissioner of correctional services may permit any inmate confined by the attend the funeral of his...grandparent...." Moreover, such participation is a privilege and not a right and, as such, the refusal to grant permission does not give rise to a viable cause of action. (Rivera v State of New York, 169 AD2d 885, lv denied 77 NY2d 807). While claimant undoubtedly experienced some distress due to his grandmother's death and frustration at being unable to attend her funeral, these allegations do not create a cause of action against the State. Accordingly, claimant has failed to establish the appearance of merit of his proposed claim relating to a death bed/funeral visit.

With respect to the remaining factors, claimant offers a dual excuse for his delay, namely that he is unfamiliar with the law and is incarcerated. (Claimant's Affidavit, ¶ 2). It is well-settled that neither ignorance of the law nor incarceration are acceptable excuses.[6] (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654; Hall v State of New York, 85 AD2d 835). This factor weighs against claimant.

Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors and will be discussed together since they involve analogous considerations. Claimant alleges that notice of the essential facts constituting this claim was obtained by the presence of various correction officers and employees during these incidents and from the related grievances which he filed. It is not clear, however, that this type of grievance regarding his medical boots would ordinarily have put the State on notice that litigation was being contemplated, so as to provide a motive for prompt investigation of the underlying facts. (Block v New York State Thruway Auth., 69 AD2d 930). As such, the court finds the factors of notice and investigation weigh against claimant.

With respect to whether claimant's failure to file resulted in substantial prejudice to the State, both parties merely state their position in conclusory terms. The court finds that the State has not demonstrated any substantial prejudice from the delay by arguing that it cannot now prepare and proceed to trial, nor does it argue that the delay in filing has generated an unfair advantage to the claimant. As such, the court finds the factor of prejudice weighs in claimant's favor.

The final factor to consider is whether claimant has any available alternate remedy. Claimant asserts he has no available alternate remedy, while the State indicates it cannot determine with any certainty whether any other remedies exist. Based on this record, the court finds that this factor favors the claimant.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the court finds that with respect to the proposed causes of action alleging denial of medical care and denial of death bed/funeral visit, that four of the six factors, including the all-important factor of merit, weigh against claimant's motion for permission to file a late claim pursuant to CCA 10 (6). Additionally, the court finds that it does not have jurisdiction to consider the motion with respect to the proposed cause of action alleging an assault by correction officers.

In view of the foregoing, IT IS ORDERED that claimant's motion for permission to late file, Motion No. M-69141, is DENIED in its entirety.

November 22, 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-69141, dated September 7, 2004, and filed September 23, 2004.
  2. Affidavit of Herby Cabrera, in support of motion, sworn to August 25, 2004.
  3. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated October 12, 2004, and filed October 14, 2004, with attached exhibits.
  4. Affidavit of Herby Cabrera, in support of motion, sworn to November 8, 2004, and filed November 12, 2004, with attachments.

[1]Claimant's notices of intention attached as State's Exhibits A and B contain the same allegations.
[2]New York State law does not recognize a negligent assault cause of action. (Sanchez v Wallkill Cent. School Dist., 221 AD2d 857).
[3]Clearly claimant does not mean June 31st since there are only 30 days in June. The court notes that this notice of intention was sworn to by claimant on June 13, 2003 which rules out the possibility that claimant meant June 30th. As such, this alleged assault appears to have taken place sometime between June 1, 2003 and June 13, 2003.
[4]To the extent that claimant's reply affidavit includes for the first time references to events in September and October 2004 they are not addressed herein inasmuch as claimant may still comply with CCA 10 and 11 since he is still within the ninety day statutory time period.

[5]Unreported decisions from the Court of Claims are available via the Internet at

[6]It is unclear whether claimant is also listing other excuses (such as an inability to read or write and physical and mental disabilities) or whether those excuses are taken from a "sample" application. In any event, any claim of illiteracy is unavailing inasmuch as claimant was able to prepare this motion or obtain assistance in doing so. Further, claimant did not submit a physician's affidavit in order to substantiate his claim of medical incapacity through the statutory period. (Cabral v State of New York, 149 AD2d 453).