New York State Court of Claims

New York State Court of Claims

VELASQUEZ v. THE STATE OF NEW YORK, #2004-030-508, Claim No. NONE, Motion No. M-67681


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:
Third-party defendant's attorney:

Signature date:
February 19, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 6, were read and considered on the Claimant's

motion for permission to serve and file a late claim brought pursuant to Court of Claims Act


1-5 Late Claim, Verification Notice, Affidavit of Service, Affidavit in Support of Motion to file late Claim by Yoyo Velasquez, Claimant, Affidavit in Support of Claim ___ (sic), sworn to November 3, 2003, with attached exhibits

  1. Affirmation in Opposition by Dewey Lee, Assistant Attorney General dated December 16, 2003
After carefully considering the papers submitted[1] 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 question."

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 report."

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.[2] The 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 York, 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 Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 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.

February 19, 2004
White Plains, New York

Judge of the Court of Claims

[1] The Court notes that an additional submission from Claimant entitled Affirmation in Opposition was received in the Office of the Chief Clerk of the Court of Claims on December 26, 2003, more than one (1) week after the motion was marked submitted. Because the submission was untimely, it has not been reviewed by the Court.
[2] Although the Defendant has not opposed the motion on the ground of availability of another remedy, and normally this factor would thereby be presumed to weigh in claimant's favor, Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)["Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted),"] here Claimant indicates he has commenced an Article 78 proceeding relative to these same facts.