New York State Court of Claims

New York State Court of Claims

ABDALLAH v. THE STATE OF NEW YORK, #2005-019-590, Claim No. NONE, Motion No. M-70951


Claimant's motion for permission to file late claim alleging assault by correction officers is denied; failure to establish legal disability under CCA 10 (5).

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):

Claimant's attorney:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL BY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 19, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate appearing pro se, moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). Defendant State of New York (hereinafter "State") opposes the motion.

The proposed claim alleges that claimant was assaulted by correction officers at Elmira Correctional Facility on two separate occasions on October 23, 2003 and December 22, 2003.

As a threshold matter, the court must address whether it has the jurisdiction to review and determine this motion which is determined by whether the motion was filed within the statute of limitations period attributable to the underlying cause of action. (CCA 10 [6]). As such, the timeliness of claimant's late filing motion with respect to an assault claim is dictated by the applicable limitations period for intentional torts,[1] namely one year from the dates of accrual. (CPLR 215 [3]). This motion was filed on November 17, 2005, well beyond the expiration of the one year period calculated from either date of accrual of October 23, 2003 or December 22, 2003. As such, the court does not have the jurisdiction to review this motion relative to the allegations of an assault by correction officers and the court need not address the statutory factors regarding this proposed claim.

To the extent that claimant's papers may be construed as a request for relief under CCA 10 (5), such relief must be denied as well. CCA 10 (5) states that "[i]f the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed." CCA 10 (5) refers to the same disabilities that operate as an extension of statute of limitations periods under CPLR 208, namely infancy and insanity. It is well-settled that CCA 10 (5) applies only to disabilities that exist on the date the cause of action accrues, but not those disabilities arising thereafter.[2] (Kurtz v State of New York, 40 AD2d 917, affd 33 NY2d 828). Moreover, CCA 10 (5) relief is available only if one has been judicially determined to be an incapacitated person. (Baker v State of New York, 186 AD2d 329). Here, claimant avers that he was prevented from filing this claim because he has "[b]een under large doses of psychiatric medication by a psychiatrist and psychlolgist (sic)." (Claimant's Affidavit in Support, p 2). However, claimant has offered no proof that he has ever been judicially determined to be incompetent or even medical records substantiating his assertions for the court to determine whether a legal disability would be applicable.

In view of the foregoing, IT IS ORDERED that claimant's motion for permission to late file, Motion No. M-70951, is DENIED.

December 19, 2005
Binghamton, New York

Judge of the Court of Claims

The court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-70951, dated November 8, 2005, and filed November 17, 2005.
  2. Affidavit of Joseph Abdallah, in support of motion, sworn to November 8, 2005, with attachment.
  3. Affirmation of Joseph F. Romani, AAG, with attached exhibit, in opposition to motion, dated December 5, 2005, and filed December 7, 2005.
  4. Claimant's letter dated December 4, 2005.

[1]New York State law does not recognize a negligent assault cause of action. (Sanchez v Wallkill Cent. School Dist., 221 AD2d 857).
[2]Even within the context of the statutory factors of 10 (6), a medical reason used as a basis for the delay in filing a claim, must be accompanied by a physician's affidavit in order to substantiate a claim of medical incapacity through the statutory period. (Cabral v State of New York, 149 AD2d 453).