This is the motion of Latanya Waddy for permission to file a late claim
pursuant to §10.6 of the Court of Claims Act (the "Act"). In her proposed
claim, Ms. Waddy alleges that on May 19, 2004, as she was walking by a jewelry
store in the Bronx, she was shot by off-duty New York State Correction Officer
Uriel DeLeon, as he was chasing several robbers who had run out of the store. 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).
In this case, a police report was prepared following the incident. In addition,
DeLeon, the State's employee, has personal knowledge of what happened.
Defendant has not disputed that these three factors have been met, and I
conclude that they have been satisfied.
As to an alternate remedy, claimant has commenced an action in Supreme Court
against DeLeon and the jewelry store, and thus this factor has not been met.
With regard to excuse, claimant states that she only recently learned that
DeLeon was a State employee. Such is not a valid excuse for the purposes of the
Act. See, e.g., 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.
Defendant does not dispute that the shooting occurred or that DeLeon was an
off-duty Correction Officer, but contends that there is no appearance of merit
because DeLeon acted outside the scope of his employment. With that said, the
proposed claim alleges negligent hiring, training and retention, a cause of
action which can comprehend acts outside the scope of employment. See,
e.g., Wyatt v State of New York, 176 AD2d 574, 575 NYS2d 31 (1st
Dept 1991); Kenneth R. v Roman Catholic Diocese of Brooklyn, 229 AD2d
159, 654 NYS2d 791 (2d Dept 1997).
Overall, 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-69928 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.