New York State Court of Claims

New York State Court of Claims

CARTER v. THE STATE OF NEW YORK, #2004-031-025, Claim No. 108038, Motion No. M-67303


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:
New York State Attorney General
BY: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on motion by Defendant for dismissal of the claim.

Papers Numbered:
1) Defendant's Notice of Motion, filed August 25, 2003;
2) Affirmation of Timothy P. Mulvey, Esq., dated August 22, 2003, with attached exhibits;
3) Affidavit of Lance Carter, sworn to September 19, 2003;
4) Affidavit of Lance Carter, sworn to October 16, 2003;
5) Claimant's unsworn statement dated October 19, 2003;
6) Affidavit of Lance Carter, sworn to November 6, 2003;
7) Affirmation of Timothy P. Mulvey, Esq., dated November 18, 2003;
8) Affidavit (denominated affirmation) of Lance Carter, sworn to December 17, 2003. Claimant commenced this action seeking to recover damages for injuries he sustained on April 11, 2003, when he was allegedly assaulted by correction officers at Auburn Correctional Facility. The claim (denominated "Notice of Intention to File a Claim and Claim") was filed on July 21, 2003, and served upon the Attorney General on July 30, 2003.

With this motion, Defendant seeks dismissal of the claim as untimely, based upon Claimant's failure to serve the claim upon the Attorney General within 90 days of the accrual of the claim, as required by Court of Claims Act § 10(3). In response to this motion, Claimant points out to the Court that he is an inmate, and identifies various problems he encountered when trying to have the claim served upon the Attorney General. He also requests that the Court grant him permission to file a late claim.
Pursuant to Court of Claims Act ("CCA") § 10(3), a claim based upon personal injury resulting from the negligence, or intentional act, of an agent of the State, such as is alleged here, must be filed within 90 days unless Claimant has served a notice of intention to file a claim. As stated above, Claimant did not serve a notice of intention to file a claim and filed and served his claim after expiration of the 90-day period. It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in Court of Claims Act § 10 are jurisdictional in nature and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722; Commack Self-Serv. Kosher Meats v State of New York, 270 AD2d 687). As such, the Claim must be dismissed as untimely.
Claimant requests that, if his claim is dismissed, I grant him permission to file a late claim. While Claimant has not submitted a formal application, construing his untimely claim as his proposed claim, I find that he has submitted sufficient materials to warrant consideration of his request. 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. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

In its opposition to this motion, Defendant disputes only factors 1 and 6 (excuse for the delay and merit). The other 4 factors are, therefore, presumed to weigh in the Claimant's favor (see Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024). Defendant points out that Claimant has offered no valid excuse for failing to file the claim in a timely manner. Defendant also argues that Claimant has failed to properly document his alleged injuries and, therefore, his proposed claim lacks merit.

With regard to his excuse for the delay, Claimant asserts that he is incarcerated and encountered difficulty in getting documents notarized and sent certified mail, return receipt requested. 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 favor of Defendant. The absence of an excuse, however, is only one of the factors considered by the Court in reviewing an application pursuant to § 10(6), and does not necessarily preclude the relief sought (Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

Although Claimant does not attach medical documents demonstrating the extent of his injuries to any of his submissions to the Court, he does allege that he was intentionally and brutally attacked by correction officers and that he suffered many injuries including injuries to several vertebrae and recurring headaches.

Of the six enumerated factors in CCA § 10(6), it is the appearance of merit that is most significant. 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). Generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous or legally defective, and upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

Taking these uncontested allegations as true, as I must when construing such motions, I find that, for the purposes of this application, Claimant has met the threshold for establishing that his claim has the appearance of merit.

Upon reviewing and balancing all of the factors enumerated in CCA § 10(6), the Court finds that they weigh in favor of granting Claimant's motion for permission to file a late claim. Based upon the foregoing it is hereby

ORDERED, that Defendant's motion to dismiss claim 108038 is granted. The Clerk is directed to close the file. And it is further,

ORDERED, that Claimant's application for permission to file a late claim in this matter is granted. Claimant is directed to file and serve a claim identical to the claim served upon the Attorney General on July 30, 2003; and to do so in conformance with the requirements of CCA §§ 10, 11 and 11-a within sixty (60) days after this order is filed.

April 30, 2004
Rochester, New York

Judge of the Court of Claims