4. August 17, 2003 correspondence of Claimant. This is the motion of Anthony
Bonacci for permission to file a late claim pursuant to § 10(6) of the
Court of Claims Act (the "CCA"). According to the motion papers, Claimant was
found guilty of disciplinary charges that he alleges were bogus. Mr. Bonacci
also apparently believes that something improper occurred at the hearing itself,
stating that Defendant failed to "take all Claimante (sic) evidence and
testimony of witnesses, film, audio, statements in regards of the claimates
fact's (sic)". By this, I cannot tell if Claimant alleges that the hearing
officer did not give proper weight to Claimant's evidence, or refused to admit
Claimant's evidence. Claimant also does not indicate the nature of this
evidence, nor why it should have been admitted or given greater weight.
Claimant also fails to identify the date or dates of the disciplinary hearings
of which he complains.
Subdivision 6 of § 10 of the CCA enumerates six factors to be weighed in
connection with a late claim motion: (1) whether the delay was excusable; (2)
whether Claimant has any other remedy; (3) whether Defendant had notice of the
essential facts constituting the claim; (4) whether Defendant had an
opportunity to investigate; (5) whether Defendant would be substantially
prejudiced; and (6) whether the claim appears to be meritorious.
Claimant asserts his delay in filing a claim was due to the fact that he was an
inmate confined to the Special Housing Unit, and that he thought he had to wait
for a resolution of his Article 78 proceeding before he could file a claim.
This, of course, is not a legally recognizable excuse for Claimant's delay
(Wallace v State of New York, Ct Cl, June 27, 2000 [Motion No. M-61368],
Read, P. J., UID # 2000-001-030). This factor, therefore, weighs in Defendant's
Claimant did not address whether he has another remedy. From the papers before
me, it appears that Claimant has a partial remedy, as noted below, in Supreme
Court in an Article 78 proceeding. However, his remedy for money damages based
upon false imprisonment, lies in an action against the State in the Court of
Claims. This factor, therefore, weighs in Claimant's favor.
The next three factors covering notice, opportunity to investigate, and
prejudice are closely related and may be considered together (Brewer v State
of New York, 176 Misc 2d 337, 342). Claimant alleges that Defendant had
notice of the essential facts constituting the claim but does not indicate how,
other than perhaps to allege that he was found guilty of the bogus disciplinary
charges. Claimant does not address the factors of opportunity to investigate or
substantial prejudice. I find that each of these three factors weigh in
Of the six enumerated factors in CCA § 10(6), it is the appearance of
merit that is most significant, as it would be pointless to grant permission to
file late if the proposed claim did not have at least the appearance of merit
(see e.g. Prusack v State of New York, 117 AD2d 729). On this
point, I find that Mr. Bonacci's submission is again deficient. The actions of
prison personnel involving inmate disciplinary matters are generally
quasi-judicial and, unless they exceed the scope of their authority or violate
applicable rules, are afforded absolute immunity (Arteaga v State of New
York, 72 NY2d 212; Davis v State of New York, 262 AD2d 887, lv
denied 93 NY2d 819). I find that Claimant has failed to demonstrate, or
even to adequately allege, that Defendant violated any of its own rules and
regulations in conducting the hearing, or otherwise acted outside the sphere of
privileged actions. Moreover, to the extent that Claimant's argument that the
basis for the Inmate Misbehavior Report and the resulting hearing was in and of
itself defective has merit, his remedy was with the Supreme Court in an Article
78 proceeding. (Moreno v State of New York, Ct Cl, April 5, 2001
[Claim No. 100335], Bell, J., UID # 2001-007-551).
Finally, Defendant, by letter dated July 18, 2003, has indicated that Mr.
Bonacci failed to serve a copy of his motion papers upon the office of the
Accordingly, based upon the foregoing it is hereby
ORDERED, that Claimant's motion for permission to file a late claim in
this matter is denied.