Defendant's motion to dismiss the claim for lack of jurisdiction is granted.
Claimant's cross-motion for late claim relief pursuant to Court of Claims Act
§ 10 (6) is denied. Although the cross-motion is not supported by a
proposed claim, cross-movant's attorney did attach a copy of the previously
filed claim to counsel's affirmation. That claim seeks unspecified damages for
the alleged denial of medical attention for a period of 24 hours beginning on
October 29, 2002 as well as an alleged assault and battery perpetrated upon the
claimant by correction officers S. White and K. Beecher on October 30, 2002 at
Great Meadow Correctional Facility. The claim further alleges dereliction of
duty on the part of an unnamed "correctional sgt." in allowing the assault and
battery to occur.
In support of its motion the defendant submitted the affirmation of Assistant
Attorney General Paul F. Cagino dated October 19, 2004 in which he alleges that
the claim and notice of intention to file a claim were served upon the Attorney
General by regular mail. Exhibit A attached to the motion is a photocopy of the
envelope used to serve the claim. The envelope bears a postage meter stamp
dated December 13, 2002 and indicates postage paid in the amount of $1.06. The
envelope contains no additional postage or indicia of service by certified mail,
return receipt requested.
The Assistant Attorney General's allegations concerning service are not
disputed by claimant. Instead claimant asserts in an unsworn letter to the
Court dated October 22, 2004 that he was unable to serve the claim by certified
mail/return receipt requested due to insufficient funds in his inmate account.
He alleges further that the Department of Correctional Services (DOCS) refused
to authorize an advance to cover the cost of the additional postage required for
certified mail/return receipt. Claimant's assertion is repeated in his
attorney's affirmation dated November 24, 2004 (see paras. 9-11)
submitted on the cross-motion. Counsel further avers that the defendant had
actual notice of the essential facts constituting the claim as evidenced by both
its answer to the claim and the instant motion.
In Turley v State of New York, (279 AD2d 819, lv to appeal denied
96 NY2d 708) the Appellate Division, Third Department stated:
In the instant matter the defendant raised the defense of service by regular
mail as to both the notice of intention and the claim in paragraphs seven and
eight, respectively, of its answer. Since Turley is directly applicable
under the facts of this case the claim must be and hereby is dismissed.
As noted above, the cross-motion for late claim relief is not supported by a
proposed claim. While other judges of this Court have observed that a movant's
failure to submit a proposed claim on a late claim application as mandated by
Court of Claims § 10 (6) and § 11 supports the denial of the
application (see Grant v State of New York
, Ct Cl, September 6,
2000 [Claim No. None, Motion No. M-61919, UID # 2000-001-049] Read, P.J.,
; Larocco v State of New
, Ct Cl, May 24, 2004 [Claim No. None, Motion No. M-68085, UID #
2004-009-33] Midey, J., unreported) this Court has taken a different approach
where the supporting papers include a previously filed claim. The Court will,
therefore proceed to examine the statutory factors prescribed for late claim
relief using the previously filed claim as the proposed claim.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if
the applicable Statute of Limitations set forth in article 2 of the CPLR has not
expired, to allow the filing of a late claim upon consideration of the
following factors: "whether the delay in filing the claim was excusable;
whether the state had notice of the essential facts constituting the claim;
whether the state had an opportunity to investigate the circumstances underlying
the claim; whether the claim appears to be meritorious; whether the failure to
file or serve upon the attorney general a timely claim or to serve upon the
attorney general a notice of intention resulted in substantial prejudice to the
state; and whether the claimant has any other available remedy".
The first issue for determination upon a late claim motion is whether the
application is timely. Since part of the proposed claim sounds in negligent
supervision the three-year statute of limitations set forth in CPLR § 214
(5) applies and that portion of the instant motion filed within twenty-five
months of the incident complained of is timely. The motion is also timely as
to a cause of action sounding in medical malpractice which must be commenced
within 2 ½ years of accrual pursuant to CPLR 214-a. The application is,
however, untimely insofar as movant seeks to assert a cause of action for
assault and battery which must be commenced within one year of accrual pursuant
to CPLR 215. Consideration of the late claim application is therefore limited
to causes of action sounding in negligent supervision and medical
Turning to the statutory factors, this Court has broad discretion in deciding a
motion to permit the late filing of a claim (Ledet v State of New York,
207 AD2d 965). The statutory factors are not exhaustive nor is one factor
controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The
most important factor is whether the potential claim has merit, as it would be a
futile exercise to permit litigation of a clearly baseless lawsuit (Savino v
State of New York, 199 AD2d 254).
As to the delay in filing the claim, claimant asserts that he was unable to pay
for certified mail/return receipt requested since he had insufficient funds in
his inmate account and the facility refused to authorize an advance. This
excuse has in the past been found to be reasonable (Hop Wah v State of New
York, 137 Misc 2d 751) and this factor weighs in favor of granting the
The intertwined issues of notice, opportunity to investigate and prejudice will
be considered together. This incident gave rise to both a misbehavior report
and use of force report. Under the circumstances it appears that the defendant
received timely notice of the incident and was thereby afforded an opportunity
to investigate the circumstances underlying the proposed claim. These factors
favor the claimant.
Regarding the issue of merit it is claimant's burden to show that the proposed
claim is not patently groundless, frivolous or legally defective and there is
reasonable cause to believe that a valid claim exists (see Rosenhack v
State of New York, 112 Misc 2d 967; Matter of Santana v New York State
Thruway Auth., 92 Misc 2d 1).
As to the proposed cause of action for negligent supervision of correction
officers White and Beecher claimant alleged in the previously filed claim that
"no sgt was notify [sic] of my incident." The claim makes no other
reference to supervisory personnel or any alleged negligence on the part of such
personnel and, as a result, the Court finds that this aspect of the claim lacks
merit. The filed claim further alleges that claimant was denied requested
medical care for over 24 hours. But this allegation is belied by other
allegations set forth in the filed claim. Specifically claimant alleges that
upon arriving at the facility hospital on October 29, 2002 he "was seen by
medical staff. She check my blood pressure and stated nothing was wrong with
me, I cannot recall her name. Momentarily another medical staff came to see me,
this time it was a male staff his name I cannot recall due to the pain I am in
at the current time, he then escorted me to the second floor, and I was place
[sic] in hospital holding cell. loc. I so room #4. I've stayed in the
room for over twenty-four hrs and no medical staff came to my aid."
It appears from his own allegations that claimant was not denied prompt medical
attention but rather was dissatisfied with the type and extent of medical care
provided. The claim does not allege that claimant sustained any injury as a
result of the medical attention he received or by being deprived of additional
Because this portion of the claim involves questions regarding standards of
care and the professional judgments of two members of the facility medical staff
relative to diagnosis and treatment the application for late claim relief must
be supported by expert medical opinion (Perez v State of New York, 293
AD2d 918; Favicchio v State of New York, 144 Misc 2d 212; Daniels v
State of New York, Ct Cl, August 11, 2004 [Claim No. None, Motion Nos.
M-68594, M-67929, UID #2004-031-102] Minarik, J. unreported and cases cited
therein). No physician's affidavit was submitted on the instant motion and the
conclusory allegations set forth in claimant's attorney's affirmation are
clearly insufficient to establish merit. This important factor weighs against
granting the motion.
As to the final factor, it does not appear that any other legal remedy is
available to claimant under the circumstances.
Upon consideration of all of the statutory factors the claimant's motion for
late claim relief pursuant to Court of Claims Act § 10 (6) is denied.