After carefully considering the papers
and the applicable law the motion is
disposed of as follows:
Yoyo Velasquez, the proposed Claimant herein, alleges in the proposed claim -
entitled Late Claim by Mr. Velasquez - that a disciplinary sanction of loss of
recreational privileges for seven (7) days was wrongfully imposed by Defendant's
agents on or about October 14, 2002, and that the manner in which the sanction
was imposed violated his State Constitutional right to due process and is
therefore a constitutional tort. From the papers presented, it appears that the
Claimant did not pursue the appeal process pursuant to 7 NYCRR §253.1 et
seq. and §254.1 et seq., but instead filed two grievances of
some kind to discover who authorized the loss of recreation since he alleges he
never had a hearing.
Mr. Velasquez does not provide a copy of the grievances he filed, but does
provide copies of the administrative determinations relative to them,
essentially declaring that there is no record of a proceeding involving a seven
(7) day loss of privileges.
The Superintendent's determination of the grievance [GH 50513-03] in which
Claimant is described as wanting " . . . to know who authorized his loss of
recreation status . . . [and] would also like due process on future disciplinary
sanctions," dated February 7, 2003, states "Disciplinary indicates that grievant
was on ‘loss of rec' as a result of a Tier I Hearing on 10/1/02." At the
State level, the Central Office Review Committee upheld the Superintendent's
determination on April 2, 2003, "for the reasons stated," but "notes that Tier I
misbehavior reports are destroyed 14 days after the hearing. The dispositions
for such hearings are not made part of any inmate's institutional records. As
such, there is (sic) [no] record of the disciplinary disposition in
It appears that Claimant may have then filed a grievance [GH 50757-03] relative
to the first grievance, which according to the Superintendent's determination
dated March 9, 2003 denying it, is described as complaining that the sanctions
"were not appropriate." The Superintendent indicates that "[d]isciplinary
sanctions are nongrievable as they have their own appeal process." At the
State level, the Central Office Review Committee denied the grievance on April
24, 2003, saying "CORC upholds the determination of the Superintendent for the
reasons stated. CORC notes that a disciplinary hearing may be appealed in
accordance with 7 NYCRR, Chapter V and that this appeal mechanism affords the
opportunity to remedy any factual or procedural errors in a disciplinary
Claimant has also appended a copy of a memorandum from a Lieutenant W. Keyser
to Claimant dated December 30, 2002 indicating "there is no record of any loss
of recreation on your disciplinary record since you have been here at Green
Haven," as well as a memorandum dated February 6, 2003 directed to Claimant
denying a Freedom of Information Law (FOIL) request for disciplinary records.
The FOIL denial states that only existing records can be obtained through FOIL,
and that ". . . according to the disciplinary office, there is no record of any
disciplinary ticket on file for you for the date of 10/14/02 where you allegedly
received a seven (7) day loss of recreation."
In order to determine an application for permission to serve and file a late
claim, the Court must consider, "among other factors," the six factors set
forth in §10(6) of the Court of Claims Act. The factors stated 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.
Court is afforded considerable discretion in determining whether to permit the
late filing of a claim. See e.g. Matter of Gavigan v State of New
, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any
particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v
New York State Employees' Retirement System Policemen's & Firemen's
, 55 NY2d 979, 981 (1982); Broncati v State of New
, 288 AD2d 172 (2d Dept 2001).
Additionally, the motion must be timely brought in order to allow that a late
claim be filed " . . . at any time before an action asserting a like claim
against a citizen of the state would be barred under the provisions of article
two of the civil practice law and rules . . . " Court of Claims Act §
10(6). Here, the applicable statute of limitations is three (3) years, thus the
motion is timely. Civil Practice Law and Rules §214.
A claim appears to be "meritorious" within the meaning of the statute if it is
not patently groundless, frivolous or legally defective and a consideration of
the entire record indicates that there is reasonable cause to believe that a
valid cause of action exists. Matter of Santana v New York State Thruway
Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima
facie case at this point, but rather the appearance of merit. See
e.g. Jackson v State of New York, Claim No. NONE, Motion No. M-64481
(Midey, J., filed February 28, 2002).
His mere incarceration, and movement within the system, and the asserted
difficulty in obtaining representation by counsel or otherwise conferring with
counsel, does not constitute a reasonable excuse in the nature of a disability,
or otherwise. See Plate v State of New York, 92 Misc 2d 1033,
1037-1039 (Ct Cl 1978). There must be some showing that the circumstances of
his incarceration prevented claimant from taking effective steps to perfect his
claim, or contact an attorney. Bommarito v State of New York, 35 AD2d
458, 459 (4th Dept 1971). Claimant has made no such showing, thus this factor
weighs against him.
His claim of lack of knowledge of the law and an inability to retain counsel do
not constitute acceptable excuses. Innis v State of New York, 92 AD2d
606 (2d Dept 1983), affd 60 NY2d 654 (1983); Musto v State of New
York, 156 AD2d 962 (4th Dept 1990).
The absence of an excuse, however, is but one of the factors to be considered,
and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc.
v New York State Employees' Retirement System Policemen's & Firemen's
Retirement System, supra.
The closely related factors of notice, opportunity to investigate and prejudice
to the State, considered together, weigh against granting Claimant's motion.
Any documentation of the Claimant's allegedly wrongful loss of recreation
privileges, according to the documents Claimant filed with respect to this
motion, are not maintained by Defendant's agents in the regular course. At this
point, the passage of time has been substantial enough that the State's ability
to investigate is impeded to its prejudice. Cf. Edens v State of New
York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one-half
months from date of accrual). Accordingly, these factors weigh against
granting the motion.
As noted, Claimant need not establish his claim prima facie, but rather
show the appearance of merit. Jackson v State of New York, supra.
Claimant has not made the requisite showing of merit in order to permit late
filing of his claim.
The factors the Court must consider to determine if a cause of action for a
State constitutional tort is properly brought in the Court of Claims are
whether: (1) the applicable constitutional provision is self-executing; (2)
monetary damage remedies further the purpose of the underlying constitutional
provisions and necessarily assure its effectiveness; (3) the provisions are such
that they impose a clearly defined duty on the State officers and/or employees;
(4) declaratory and injunctive relief is inadequate; and (5) money damages
necessarily deter governmental conduct and make the claimant whole. Brown v
State of New York 89 NY2d 172 (1996).
In New York, constitutional provisions are presumptively self-executing.
(id. at 186). Violation of every self-executing provision will not always
support a claim for damages however. Only where it is necessary to ensure the
effectiveness and promote the purposes of the allegedly violated provision will
a constitutional tort remedy be implied. (id. at 191). Here, the Court
is not convinced that any monetary recovery would further the purpose of the
underlying constitutional provisions nor, indeed, make the Claimant whole.
Additionally, the relief available through a proceeding brought pursuant to
Article 78 of the Civil Practice Law and Rules, could provide this Claimant with
an adequate remedy.
Moreover, the Claimant has not satisfied the Court that any loss of privilege
indeed occurred in the first instance, given that the only support for his claim
of loss of recreational privilege are his own, self-serving, statements.
Accordingly, Claimant's motion number M-67681, for permission to file a late
claim is in all respects denied.