Claimant's prior motion to have the Court treat the notice of intention as a
claim, and to consolidate allegations of failure to protect Claimant from an
assault, with an already filed bailment claim, was denied in its entirety in
this Court's prior Decision and Order filed October 10, 2003. The same
decision, however, denied the additional motion for permission to serve and file
a late claim without prejudice to Claimant bringing a new, properly supported,
motion within forty-five (45) days of the filing date of the decision.
The present motion appears to have been served upon the Office of the Attorney
General on or about November 18, 2003, and was filed with the Office of the
Chief Clerk of the Court of Claims on November 24, 2003, and is therefore timely
brought pursuant to the terms of this Court's prior Decision and Order filed
October 10, 2003.
In the proposed Claim, Claimant indicates that on June 14, 2001 while he was
returning to his housing block from the "J-School area" at Green Haven
Correctional Facility he was assaulted by another inmate, and suffered serious
injury. He alleges the Defendant's agents provided inadequate security at the
location, were aware of the inadequacy of the security provisions in place, and
were aware that this Claimant would be a target for any inmate assault since he
had cooperated with law enforcement officials in the past and had sought - and
been denied - protective custody.
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 the Court of Claims Act §10(6). 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. In any event, this
Court had provided that such a motion could be brought within a particular time
frame thus the motion is timely for that reason as well.
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). A claim of lack of knowledge of the law and an
inability to retain counsel does 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). 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 not made such a showing.
In this case Claimant indicates that his hospitalization for reconstructive
surgery as a result of the assault and the impairment of his vision for several
months because of the assault impeded his ability to physically conduct any
research. Additionally, he indicates that he was housed in protective custody
with limited access to the law library for an extensive period and, based upon
his cooperation with law enforcement officials, feared transmittal of his
paperwork and research requests through the means provided to those in
protective custody, namely, other inmates. Claimant has not included any medical
records further supporting his assertions of medical impairment. See
Cabral v State of new York
, 149 AD2d 453 (2d Dept
; Goldstein v State of New York
75 AD2d 613, 614 (2d Dept 1980)
Additionally, Claimant offers as an excuse for the passage of time between the
date of the alleged assault and the pursuit of this claim his attempt to obtain
a sentence reduction. He also cites his continued fear of retaliation while he
was still at Green Haven, as well as after his transfer to Sing Sing
Correctional Facility (hereafter Sing Sing), where he indicates his cooperation
with federal law enforcement officials and retaliatory actions by inmates as
well as New York State Department of Correctional Services (hereafter DOCS)
officials being investigated, began. As reasons for not serving and filing the
claim at issue these assertions are not persuasive.
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 toward granting Claimant's motion. Any
pictures or other documentation of the incident would presumably be maintained
by Defendant's agents. The passage of time has not been so great 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). Since the State has not
opposed the motion, any asserted prejudice is speculative. Accordingly, these
factors weigh in favor of 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.
If the allegations in the claim are accepted as true for the purposes of the
motion, Claimant has made the requisite showing of merit in order to permit late
filing of his claim.
Accordingly, Claimant's motion for permission to file a late claim is hereby
granted. Claimant is directed to serve his claim upon the Attorney General, and
to file a Claim identical to the proposed Claim, with the Chief Clerk of the
Court of Claims within thirty (30) days from the date of the filing of this
decision and order in the Clerk's office, with such service and filing to be in
accordance with the Court of Claims Act, with particular reference to
§§ 10, 11 and 11-a, and the Uniform Rules for the Court of