New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2005-016-018, Claim No. None, Motion No. M-69267


Late claim motion was granted; proposed claim alleged, inter alia, that claimant was "threaten[ed], beat[en] and forced to purchase items with my own personal money from the Commissary by the Head Cook, . . . an employee of" the State.

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):

Alan C. Marin
Claimant's attorney:
Johnny Johnson, Pro se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Dewey Lee, Esq., AAG
Third-party defendant's attorney:

Signature date:
March 1, 2005
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is the motion of Johnny Johnson for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In his proposed claim, Mr. Johnson alleges that for a period of almost five months, beginning on or about March 31, 2003, he was "threaten[ed], beat[en] and forced to purchase items with [his] own personal money from the Commissary by the Head Cook [at Mid-Orange Correctional Facility] . . ." Proposed Claim, ¶3. In order to determine this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). As set forth more fully below, according to claimant, the actions of the cook, an employee, became the subject of an investigation of the Inspector General's Office and an arbitration proceeding which resulted in the cook's resignation or termination. Claimant also alleges that numerous state employees were present during, or aware of, the incidents complained of, and he also alleges that reports and memoranda were prepared with respect to the incidents. Defendant has not disputed that these three factors have been met, and on balance, I find that they have been satisfied.

As to an alternate remedy, defendant does not challenge that this Court is where claimant's remedy lies. With regard to excuse, claimant alleges that as a layperson, he was unaware of the timing requirements of the Act. Such is not an adequate excuse for the purposes of the Act. See, e.g., Matter of E.K. v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied 89 NY2d 815, 659 NYS2d 856 (1997).

Finally, it must be determined whether the proposed claim appears meritorious. Johnson has alleged facts and dates with great detail. For example, he alleges that in addition to being physically assaulted by the cook, he was threatened that other inmates and staff members would be told about his underlying crime, endangering his safety because of the nature thereof. He also specifically alleges that at the end of June 2003, the cook lifted him off the ground and dropped him to the floor, re-injuring his back and causing him to be hospitalized, take pain medication and walk with crutches, a cane, and now a back brace.

In addition, claimant alleges that he eventually notified the Inspector General's Office and the cook "was caught in the act of extorting . . . me while on the job." Proposed Claim, ¶6. Thereafter, according to Johnson, he was transferred to Mt. McGregor Correctional Facility, where the transporting officers told Mt. McGregor officers that he had cooperated with the Inspector General's Office and he began to be "threaten[ed] and harass[ed]" at Mt. McGregor during September and October of 2003. He was subsequently transferred "by the Inspector General's Office" to Hudson Correctional Facility in October 2003 where he was threatened with assault on several occasions by another civilian employee cook. Finally, claimant alleges that in December of 2003, an arbitration hearing was held by the Department of Correctional Services where claimant "reluctantly . . . testified," after which the cook was either dismissed or resigned. See Proposed Claim, ¶¶7-10.

Defendant has made no objection with respect to the merit factor, and I find that claimant meets the standard set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977): (i) the claim "must not be patently groundless, frivolous, or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."

Accordingly, having reviewed the parties' submissions[2], IT IS ORDERED that motion no. M-69267 be granted and that within forty-five (45) days of the filing of this Decision and Order, claimant shall serve and file the proposed claim submitted with this motion, and otherwise comply with §§11 and 11-a of the Court of Claims Act.

March 1, 2005
New York, New York

Judge of the Court of Claims

  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]The Court reviewed: claimant's notice of motion with affidavit in support, memorandum of law and exhibit 1, the proposed claim; and defendant's affirmation in opposition.