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
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
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'
, 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.