New York State Court of Claims

New York State Court of Claims

BOYD v. THE STATE OF NEW YORK, #2004-030-512, Claim No. NONE, Motion No. M-67708


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:
March 3, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 4 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 §10(6):

1-3 Motion for Permission to File a Late Claim (sic); Claim; Affidavit in Support of Motion to Late File a Claim with attached exhibits

  1. Filed Papers: Markeith Boyd v State of New York, Claim No. NONE, Motion No. M-67034, (Scuccimarra, J., filed October 10, 2003)
Opposition: None

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:
Procedural Background
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.
Late Claim Motion
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.[1] 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. 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 1989)[2]; Goldstein v State of New York, 75 AD2d 613, 614 (2d Dept 1980)[3]. 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 Claims.

March 3, 2004
White Plains, New York

Judge of the Court of Claims

[1] The Defendant has not opposed the motion on the ground of availability of another remedy therefore this factor is 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 . . . "]
[2] "The only excuse offered in support of the contention that the delay was excusable was a conclusory assertion by the claimant's counsel, unsupported by a physician's affidavit, that the claimant's alleged hospitalization at some undisclosed time delayed her from contacting an attorney, and that the claimant had no knowledge of the 90-day statutory filing requirement."
[3] "Although claimant alleged she was either hospitalized or convalescing for the entire period during which she could have timely filed the claim, such alleged incapacity is inadequate as an excuse for late filing without either a physician's affidavit or hospital records . . . "