New York State Court of Claims

New York State Court of Claims

PUCCI v. THE STATE OF NEW YORK, #2004-032-032, , Motion No. M-67980


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:
Curtis M. Pucci, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael C. Rizzo, Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 1, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's proposed claim arose as a result of a January 2002 court proceeding, held in Rochester, New York in which he was found guilty of assault. The verdict was rendered in absentia, however, because after the first day of trial movant had jumped bail and absconded. Following the conviction a warrant was issued for him, and on February 20, 2002, he was arrested by several State Police at his nephew's home in Schenectady, New York. Movant alleges that the police officers assaulted him and used excessive force in effecting that arrest.
Movant also alleges that he was denied medical treatment for his injuries, during the several hours that it took to transport him back to Rochester or later that day, except for a single visit from a nurse at the Monroe County Jail. Over the next sixteen days, while he was housed in the county jail, movant repeatedly and unsuccessfully sought further medical treatment. On March 8, 2002, he was transferred to State custody at Elmira Correctional Facility. Although he was seen by the facility medical staff at intake, he was allegedly informed that he would have to wait for treatment of his injuries at his final destination. On June 23, 2002, after a brief stay at Auburn Correctional Facility, movant arrived at Five Points Correctional Facility. There he was seen by a physician's assistant and then by an outside orthopedic specialist who diagnosed him as having degenerative arthritis and possibly some neurological impairment. He received physical therapy until August 2003, when he had to stop because of a hernia operation. Physical therapy was not resumed thereafter. Movant asserts that he continues to experience pain and suffering in his back, legs, feet and neck and that he suffers from headaches.
With respect to the events of February 20, 2002, if those allegations are viewed as setting forth a cause of action for assault, the CPLR Article 2 statute of limitations applicable to that and other intentional torts ran on February 20, 2003, and it is too late to grant permission for late filing (see, Court of Claims Act §10[6]). Movant vigorously argues that he is stating a cause of action for negligence, not an intentional tort, and he also indicates in his claim that he is suing for "personal injuries, sustained by Claimant, unintentionally but negligently inflicted upon him by Officers of The New York State Police" (proposed Claim, ¶2; see also, footnote 2). New York State law does not recognize a negligent assault cause of action (Sanchez v Wallkill Central School District, 221 AD2d 857 [3d Dept. 1995]). Any claim predicated upon defendant's use of excessive force, even if such use was unintentional, is properly denominated as an assault claim (Mazzaferro v Albany Motel Enterprises, Inc., 127 AD2d 374, 376 [3d Dept 1987]; see also, Jones v State of New York, 33 NY2d 275, 280 [1973] [Where correction officers or others who are empowered by governmental entities to use force in carrying out their duties use more force than is necessary or reasonable under the circumstances, the cause of action is an intentional tort, for which the employer may be liable under the theory of respondeat superior].) "Merely inserting the term negligence cannot eliminate the necessarily intentional aspects of an arrest or imprisonment or an assault/battery" (Amalfi v State of New York, UID# 2001-005-517, Claim No. 91180, Motion No. M-60731, May 29, 2001, Corbett, J.). Movant's cause of action based on the events of February 20, 2002, therefore, would be time barred if commenced against a private citizen, and thus the Court lacks authority to permit it to be late filed here.
That portion of movant's proposed claim relating to denial of medical attention concerns the period from February 20, 2002 to early July 2002, shortly after he was transferred to Five Points Correctional Facility and seen by a physician's assistant and an orthopedic specialist. This motion was brought approximately one and one-half years later, and a like action against a citizen would not be barred by the applicable statute of limitations (CPLR 214 [negligence], 214-a[malpractice]). In determining a motion for permission to file a late claim, the Court must consider, among
other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: 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 to be meritorious; 5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and 6) whether the claimant has another available remedy. The Court in the exercise of its discretion balances these factors. The presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]).

Movant failed to timely initiate an action in this court because he was unaware of the filing requirement and because he was transferred to several different prisons during the period immediately after February 20, 2002. Ignorance of the law does not provide an acceptable excuse for failing to comply with the requirements of the Court of Claims Act (Matter of Galvin v State of New York, 176 AD2d 1185 [3d Dept 1991], lv denied 79 NY2d 753; Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd on opn below 42 NY2d 854). Furthermore, as noted above, the only portion of the proposed claim that is still viable did not accrue until after he had reached Five Points Correctional Facility, so those repeated transfers did not affect his ability to prepare motion papers.
Movant further asserts that the State had notice of the essential facts constituting the claim because of his numerous written complaints seeking medical treatment. It is not clear, however, that this type of complaint would ordinarily have put the State on notice that litigation was being contemplated, so as to provide a motive for prompt investigation of the underlying facts (Block v New York State Thruway Authority, 69 AD2d 930 [3d Dept 1979]). Because the alleged withholding of treatment occurred between February 2002 and June 2002, it is also likely that the passage of time may interfere with the memories of those who made decisions about whether or not to provide treatment to movant; this gap of time may also interfere with the parties' ability to locate some witnesses. If so, it is likely that defendant's opportunity to investigate the circumstances underlying the claim would be to some degree impeded, although medical records would provide a good deal of the relevant information.
Movant may have at least a partial remedy against a party other than the State, as he was in the custody of local officials from the time he was arrested until March 8, 2002, when he was transferred to Elmira Correctional Facility. The State cannot be liable for any negligence or malpractice on the part of county officials, except in certain unusual circumstances, not relevant here, where they are acting as agents for the State.
Movant has not fully succeeded in establishing that the proposed claim is not patently groundless, frivolous, or legally defective and 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]). From the facts recounted in movant's proposed claim, he was denied medical treatment for what he describes as severe pain and serious injuries. He was physically examined, however, on the day of the alleged assault and again, approximately two weeks later, when he entered State custody. No treatment was provided on either occasion which inevitably raises doubts about the accuracy of his descriptions. When he was later examined more thoroughly by a physician's assistant and then by an orthopedic specialist, the only condition discovered was degenerative arthritis (proposed Claim, ¶4.11). There is simply nothing, other than movant's unsupported, conclusory statements, to suggest that there was an urgent need for medical treatment following the February 20, 2002 arrest.
If movant were not appearing pro se, his attorney would have to submit along with any claim based on medical malpractice a statement that the attorney has consulted with at least one physician regarding the proposed action and, based on that consultation, believes that there is a "reasonable basis" for instituting the action (CPLR 3012-a[a][1]). Litigants who are representing themselves are not obliged to provide such a certificate of merit (subd. [f]), but in the Court's view, they must at least allege facts that provide a reasonable cause to believe that a valid cause of action exists. In this instance, movant has failed to allege such facts.
The factors set forth in Court of Claims Act § 10 (6) indicate that movant is not entitled to the requested relief, and consequently the motion is denied.

June 1, 2004
Albany, New York

Judge of the Court of Claims

The following papers were read on movant's motion for permission to file an untimely claim pursuant to Court of Claims Act §10(6):
1. Notice of Motion, Supporting Affidavit and Proposed Claim of Curtis M. Pucci, pro se

2. Affidavit in Opposition of Michael C. Rizzo, Esq., AAG

3. Reply Affidavit of Curtis M. Pucci, pro se

Filed papers: None