New York State Court of Claims

New York State Court of Claims

HOWE v. THE STATE OF NEW YORK, #2005-010-020, Claim No. NONE, Motion No. M-69662


Synopsis


Claimant's motion to serve and file a late claim is denied. The Court did not find an appearance of merit.

Case Information

UID:
2005-010-020
Claimant(s):
HAROLYN A. HOWE
Claimant short name:
HOWE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-69662
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
WAYNE GABEL, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: J. Gardner Ryan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
March 29, 2005
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on claimant's motion to serve and file a late claim:
Notice of Motion, Attorney's Supporting Affirmation, Claimant's Supporting Affidavit and Exhibits................................................................................................1

Attorney's Affirmation in Opposition and Exhibits...................................................2

Reply Affidavit and Exhibit......................................................................................3

The proposed claim alleges that on January 16, 2002, at a house in Stamfordville and another house in Rye Brook, claimant's State and Federal Constitutional rights and civil rights were violated by the conduct of the New York State Police (Ex. 1). The claim does not specify which particular rights were allegedly violated nor does it allege how those rights were allegedly violated.

Upon review of all the papers before the Court, including claimant's affidavit and the papers submitted by defendant, it appears that this claim arises out of the investigation by New York State Police of the suicide of claimant's husband, who had been a Senior Investigator with the New York State Police for more than 20 years. The alleged situs of the claim is the marital home of claimant and her husband located in Dutchess County. The other location was claimant's mother's home in Rye Brook where claimant and her husband lived during the work week. Claimant's husband committed suicide in the detached garage on claimant's property located approximately 100 feet from their home in Dutchess County. Claimant's affidavit indicated that her constitutional claims are based upon the allegation that the state police destroyed the Dutchess home in their search for her husband's off-duty revolvers and that the police took advantage of claimant's emotional state by coming to the Rye Brook home and persuading claimant to turn over to the police the suicide notes that claimant's husband had left at the Rye Brook home. Claimant complied with their request for the notes. According to defendant, the police secured the notes as evidence obtained as part of the investigation. Defendant maintains that these notes were what prompted claimant to call the police about her husband and what initiated the investigation. In response to claimant's call, the police went to claimant's Dutchess home and found the decedent and notes he had written referring to firearms hidden in the Dutchess home. The police entered the Dutchess home in search of the firearms and then proceeded to the Rye Brook home for the notes.

The determination of a motion for leave to file a late claim requires the Court to 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 presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

The Court has considered the above six factors. Claimant's purported excuse for the failure to timely commence an action is her severe depression. She submits, inter alia, an affidavit of her treating physician who states that claimant is "generally unable to manage her affairs *** [and] function in society" (Claimant's Ex. 2).

In deciding a motion for leave to serve and file a late claim, the most significant factor is whether the proposed claim has an appearance of merit. Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). "A general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action" (Witko v State of New York, 212 AD2d 889, 891). Here, the proposed claim fails to specify which constitutional rights were allegedly violated and how. To the extent that claimant may be alleging a violation of her federal civil rights pursuant to 42 UCS §1983, the State is not a "person" within the meaning of that section and, therefore, a 1983 action will not lie against the State (see Monell v New York City Dept. of Social Services, 436 US 658; Brown v State of New York, 89 NY2d 172). As to any State constitutional claims, the Court of Appeals has made clear that the "narrow remedy" created in Brown v State of New York, 89 NY2d 172, supra at 192, is not "boundless" and is implied only where "necessary and appropriate to ensure the full realization of the [constitutional] rights" (id. at 189). Recognition of a State constitutional claim has not been implied where the alleged wrongs may be addressed by timely interposed common-law tort claims (see Martinez v City of Schenectady, 97 NY2d 78, 83; Augat v State of New York, 244 AD2d 835, 837). Here, claimant has failed to allege sufficient facts which could not be addressed by timely interposed common-law tort claims. Accordingly, this Court does not find an appearance of merit of a state constitutional claim (see Brown v State of New York, supra at 184-86; Lyles v State of NewYork, 2 AD3d 694, affd 3 NY3d 396; Welch v State of New York, 286 AD2d 496). Claimant's unsupported conclusory allegations are insufficient to establish the appearance of merit (see Klingler v State of New York, 213 AD2d 378 [claimant's unsupported opinion does not suffice to establish merit of her claim]).

Accordingly, upon weighing all the factors, claimant's motion for leave to file and serve a late claim is DENIED (see Qing Liu v City Univ. of N.Y., 262 AD2d 473).

March 29, 2005
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims