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 ). 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
namely one year from the dates of
accrual. (CPLR 215 ). 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.
(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
In view of the foregoing, IT IS ORDERED that claimant's motion for permission
to late file, Motion No. M-70951, is DENIED.
Notice of Motion No. M-70951, dated November 8, 2005, and filed November 17,
Affidavit of Joseph Abdallah, in support of motion, sworn to November 8, 2005,
Affirmation of Joseph F. Romani, AAG, with attached exhibit, in opposition to
motion, dated December 5, 2005, and filed December 7, 2005.
Claimant's letter dated December 4, 2005.