New York State Court of Claims

New York State Court of Claims

SMALLS v. THE STATE OF NEW YORK, #2004-032-074, , Motion No. M-68189


Synopsis


Claimant's motion for leave to file a late claim is denied because the proposed claim lacks merit.

Case Information

UID:
2004-032-074
Claimant(s):
ERIC SMALLS
Claimant short name:
SMALLS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-68189
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Eric Smalls, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kathleen M. Resnick Arnold, Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
September 27, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant alleges that on November 25, 2002, he was brutally assaulted by correction officers while an inmate at Clinton Correctional Facility ("Clinton"). On January 6, 2003, claimant properly and timely served the Attorney General with a notice of intention to file a claim. He failed, however, to file or serve a claim. On March 15, 2004, he filed a motion for permission to file a late claim pursuant to section 10 (6) of the Court of Claims Act.

Initially, the Court must determine whether claimant's motion for permission to file a late claim was timely filed within the relevant statute of limitations period provided by Article 2 of the CPLR (see § 10 (6) of the Court of Claims Act). The failure to file such a motion within the prescribed time period "creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief" (Byrne v State of New York, 104 AD2d 782, 783 [2nd Dept 1984], lv denied 64 NY2d 607 [1985]). Claimant's cause of action for the intentional torts of assault and battery are governed by a one year statute of limitations (CPLR 215 [3]). Because claimant's motion was brought more than one year after this claim accrued, that part of the motion seeking leave to file a late claim alleging the intentional torts of assault and battery is untimely and must be denied.

Claimant admitted in his supporting affidavit that the statute of limitations on a claim for assault and battery had elapsed before he filed his motion (Smalls affidavit, ¶ 6). Claimant correctly notes, however, that the statute of limitations on a constitutional tort has not elapsed. He seeks permission to file a late constitutional tort claim in order to allege that the assault amounted to cruel and unusual punishment as proscribed by Article 1, § 5 of the Constitution of the State of New York.[1]

In determining whether to grant permission to file a late claim, this Court must consider whether 1) the delay in filing the claim was excusable, 2) the State had notice of the essential facts constituting the claim, 3) the State had an opportunity to investigate the circumstances underlying the claim, 4) the claim appears meritorious, 5) the failure to serve a timely notice of intention to file or to file and serve a timely claim resulted in substantial prejudice to the State, and 6) there is any other available remedy (see § 10 (6) of the Court of Claims Act; Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 [3d Dept 1991]; Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]).

Claimant alleges that his incarceration, inability to access a law library, inability to retain counsel and ignorance of the statute of limitations for intentional torts should excuse him from filing a timely claim. However, claimant was well versed in the Court of Claims Act and was savvy enough to serve a timely notice of intention to file a claim. In June of 2003, before the statute of limitations for intentional torts expired, he was also able to file a motion for leave to file a late claim for loss and destruction of personal property (Motion No. M-66933,

September 25, 2003, Hard, J.). Nothing about his incarceration prevented him from filing that motion and presumably nothing would have prevented him from filing and serving a timely claim for assault and battery. Here, claimant has failed to make an affirmative showing that the circumstances of his incarceration prevented him from filing and serving a timely claim (see Bommarito v State of New York, 35 AD2d 458 [4th Dept 1971]). Moreover, neither the inability to access a law library, the lack of knowledge nor the inability to retain counsel excuse claimant's delay in filing a claim (Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]). This factor therefore weighs against the granting of the relief requested.

The factors of notice, opportunity to investigate and prejudice can be viewed together. Here, claimant timely served a notice of intention on the Attorney General wherein it was alleged that correction officers at Clinton assaulted claimant. Because a notice of intention was timely served and because the State does not address these factors, the Court cannot conclude that the State lacked notice of the essential facts, at least as to the alleged assault, or was prevented from undertaking a meaningful investigation (see Carmen v State of New York, 49 AD2d 965, 966 [3d Dept 1975]). The Court therefore concludes that these factors weigh in favor of granting leave to file a late claim.

The most decisive factor to consider in determining whether to grant relief under Court of Claims Act § 10 (6) is whether the proposed claim is meritorious. With respect to claimant's allegations regarding cruel and unusual punishment, it has been held that a remedy based on the State constitution does not exist when the alleged constitutional tort is analogous "to an existing common-law tort for which there are adequate alternate remedies" (Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]). Claimant's allegations herein could have been readily addressed in a timely commenced common-law cause

of action for assault and battery, and therefore he fails to allege a viable State constitutional tort claim (see Brown v State of New York, 89 NY2d 172 [1996 ]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Pabon v State of New York, UID # 2003-015-333, Claim No. 107090, Motion Nos. M-66335, M-66452, June 24, 2003, Collins, J.)

In light of the fact that the proposed claim does not contain a viable cause of action, claimant's motion is denied.



September 27, 2004
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read and considered:

1. Notice of motion and supporting affidavit of Eric Smalls, pro se, with exhibits;

2. Opposing affirmation of Kathleen M. Resnick Arnold, Esq., AAG.

3. Filed papers: None




[1]While claimant has not specifically raised a federal constitutional tort claim, it should be noted that this Court does not have jurisdiction over such claims (Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]).