New York State Court of Claims

New York State Court of Claims

LATTIMORE v. THE STATE OF NEW YORK, #2005-030-509, Claim No. NONE, Motion No. M-69341


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:
Third-party defendant's attorney:

Signature date:
February 8, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 3 were read and considered on Claimant's application for permission to serve and file a late claim brought pursuant to Court of Claims Act §10(6):
1,2 Notice of Motion to File Late Claim; Affidavit by Derrick Lattimore, Claimant and attachments

  1. Affirmation in Opposition by Elyse Angelico, Assistant Attorney General, and attached exhibits
After carefully reviewing the papers submitted and the applicable law, the motion is disposed of as follows:

Derrick Lattimore, alleges in his proposed claim, four causes of action all arising out of a disciplinary proceeding occurring, presumably, on February 14, 2004: the date of accrual alleged, at Sing Sing Correctional Facility (hereafter Sing Sing). He alleges that he was subjected to disciplinary proceedings as a result of a fabricated incident, and initiated a proceeding pursuant to Article 78 of the Civil Practice Law and Rules resulting in the reversal and expungement of the charges against him by Decision and Order filed and entered in the Westchester County Clerk's Office on September 17, 2004. [See Matter of Lattimore v Glenn Goord, Commr, Index No. 7960/04 (attached to proposed Claim)].

The proposed claim "adopts said Decision & Order under Westchester County index number 7960/04 as the particulars of claimant's damages in this action." [Proposed Claim, ¶3]. He then recites that the first claim is one "for negligence of the State for malicious prosecution

. . . ," the second is "a claim for wrongful confinement . . .", the third is a claim for assault by correction officers, and the fourth claim is one for constitutional tort because of violation of his right to due process of law under Article 1, §6 of the New York State Constitution. [Proposed Claim, ¶¶ 4-7].

In the Affidavit in support of the present motion, he reiterates that the claim arose at Sing Sing on February 14, 2004, and that he successfully litigated an Article 78 proceeding relative to the disciplinary action taken against him, receiving the Decision and Order reversing and expunging such action on September 20, 2004. [Affidavit by Derrick Lattimore, Claimant, ¶¶2-3]. Claimant then indicates that the New York State Department of Correctional Services had prior notice, actual knowledge of the facts, and would not be prejudiced by his being granted permission to late file his claim because it was a party to the disciplinary proceedings and subsequent litigation. [Ibid, ¶4].

In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

A copy of the proposed Claim[1], must accompany the motion, allowing the Court to ascertain the particulars of the claim, including the date of accrual, specific location of the alleged accident, and what permanent injuries are alleged. See Court of Claims Act §11-b; Sinski v State of New York, 265 AD2d 319 (2d Dept 1999).

Additionally, the motion must be timely brought in order to allow that a late claim be filed ". . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . . " Court of Claims Act § 10(6). Here, the applicable statute of limitations is three (3) years with respect to the constitutional tort claim, [Civil Practice Law and Rules §214(5)]; two (2) years from the date the claim accrued which is the date the confinement ends with respect to the wrongful confinement cause of action, [See Ramirez v State of New York, 171 Misc 2d 677 (Ct Cl 1997)] and one (1) year with respect to the claims of excessive force and malicious prosecution: intentional conduct. Civil Practice Law and Rules §215. From a reading of the proposed claim itself, it cannot be determined as an initial matter whether the motion is timely because the only date of accrual alleged is the date of the disciplinary proceeding.

A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that there is reasonable cause to believe that a valid cause of action exists. Matter of Santana v New York State Thruway Auth, 92 Misc 2d 1 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit. See e.g. Jackson v State of New York, Claim No. None, Motion No. M-64481 (Midey, J., February 28, 2002).

Claimant has not offered any excuse for failing to serve and file his claim before now, thus this factor weighs against him.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting Claimant's motion. Any documentation of the underlying incident would presumably be maintained by Defendant's agents, and, indeed, some documents from the disciplinary proceeding are attached to Defendant's papers filed in opposition. [Exhibits C, D, E]. Additionally, the passage of time has not been so great that the State's ability to investigate is impeded to its prejudice.

As argued by the Assistant Attorney General, Claimant also failed to pursue his administrative remedies. See Correction Law §139. As a result, although he had an alternative - albeit incomplete - remedy initially, with respect to the use of the inmate grievance resolution committee, since he failed to pursue it, it appears he no longer has one. Because it was his own inaction that limited his opportunities, however, this factor weighs against him.

As noted, Claimant need not establish his claim prima facie, but rather show the appearance of merit. Jackson v State of New York, supra. If the allegations in the claim are accepted as true for the purposes of the motion, Claimant has nonetheless not established the appearance of merit.

The purported incorporation of the Decision and Order in the Article 78 proceeding results in a pleading that does not conform with statutory and regulatory requirements regarding the contents of a claim. Court of Claims Act §11(b); 22 NYCRR §206.6. The proposed claim does not describe sufficiently ". . . the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained . . . " Court of Claims Act §11(b). Moreover, no claim for monetary damages is made out when Claimant has merely asserted in a conclusory fashion that he was caused undue hardship in some unspecified manner.

Establishing the tort of malicious prosecution ". . . places a heavy burden on . . ." a Clamaint. Smith-Hunter v Harvey, 95 NY2d 191, 195 (2000). They must "establish four elements: ‘(1) the commencement or continuation of a criminal proceeding by the defendant against the . . . [claimant], (2) the termination of the proceeding in favor of the accused, (3) the absence of probable cause for the criminal proceeding and (4) actual malice' (Broughton v State of New York, 37 NY2d 451, 457, cert denied sub nom. Schanbarger v Kellogg, 423 US 929)." [Id]. See also Octave v State of New York, Claim No. 97393, UID #2001-001-019 (Read, P.J., March 30, 2001). First, no facts are alleged from which all the elements of the cause of action may be gleaned. Second, this was not a criminal proceeding thus no cause of action for malicious prosecution will lie. Finally, even assuming a cause of action for malicious prosecution may arise from underlying civil matters, Claimant has not shown the absence of probable cause for the initiation of any disciplinary proceedings or that there was actual malice in the initiation of such proceedings. Claimant's first cause of action does not have the appearance of merit for late claim purposes.

The second cause of action alleges wrongful confinement. Reviewing the Decision and Order in the Article 78 proceeding - the only document Claimant relies on to substantiate his claim - does not provide sufficient basis for alleging a wrongful confinement claim as written.

To establish a prima facie case of wrongful confinement, a "species" of the tort of false imprisonment, [Gittens v State of New York, 132 Misc 2d 399, 407 (Ct Cl 1986)], a claimant must show ". . . (1) the defendant intended to confine him, (2) the . . . [claimant] was conscious of the confinement, (3) the . . . [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged. . . ." Broughton v State of New York, 37 NY2d 451, 456 (1975). Generally, in the prison setting, a claim of wrongful confinement brought in the Court of Claims is very limited. Liability is essentially established under only two circumstances: (1) if the inmate is confined beyond the term provided for in the disciplinary disposition and; (2) the disciplinary disposition itself is flawed because of a failure to follow regulations.

As noted, the proposed claim is not explicit in terms of setting forth a cause of action for wrongful confinement. Because Claimant has relied on the Decision and Order of the Westchester County Supreme Court for the "particulars", the Court is left with attempting to infer what he alleges forms the basis of his wrongful confinement claim. He does not appear to be alleging that he was confined beyond the term provided for in the disciplinary disposition. Presumably, what Claimant is alleging is flaws in the process itself. However, the Court is forced to guess that Claimant, perhaps, intended to claim that there was a failure to follow regulations in the determination to call witnesses requested by Claimant. Indeed, there are immunity considerations for such quasi-judicial determinations that would apply. See generally Arteaga v State of New York, 72 NY2d 212, 219-220 (1988). He has not appended any documentation of the disciplinary proceeding. For late claim purposes, the second cause of action in the proposed claim does not have the appearance of merit as required.

As to the third cause of action, alleging "an assault upon his person, by correctional officers at . . . Sing Sing," he does not indicate when the alleged assault occurred, or where, and simply states the above in vague, conclusory fashion. No documentation has been appended by Claimant to support this cause of action either. The third cause of action does not have the appearance of merit for late claim purposes.

Finally, the fourth cause of action alleged appears to be one for constitutional tort premised on violation of Claimant's right to due process of law under the New York State Constitution. [See Art. 1, §6 New York State Constitution].[2] To the extent that alleged acts violate the New York State Constitution, the analysis set forth in Brown v State of New York, 89 NY2d 172 (1996)[3], may apply.

The factors the Court must consider to determine if a cause of action for a constitutional tort is properly brought in the Court of Claims are whether: (1) the applicable constitutional provision is self-executing; (2) monetary damage remedies further the purpose of the underlying constitutional provisions and necessarily assure its effectiveness; (3) the provisions are such that they impose a clearly defined duty on the State officers and/or employees; (4) declaratory and injunctive relief is inadequate; and (5) money damages necessarily deter governmental conduct and make the claimant whole.

For a provision to be "self-executing", it must ". . . take effect immediately, without the necessity for supplementary or enabling legislation . . . (citations omitted). In New York, constitutional provisions are presumptively self-executing . . . (citation omitted). Manifestly, article 1, §12 [4] of the State Constitution and that part of section 11[5] relating to equal protection are self-executing. They define judicially enforceable rights and provide citizens with a basis for judicial relief against the State if those rights are violated. Actions of State or local officials which violate these constitutional guarantees are void (citations omitted). The violation of a self-executing provision in the Constitution will not always support a claim for damages, however . . . (citations omitted)." Brown v State of New York, supra, at 186.

Further clarifying what it meant in Brown, supra, the Court of Appeals more recently called it a " . . .'narrow remedy'. . . [addressing] two interests: the private interest that citizens harmed by constitutional violations have an avenue of redress, and the public interest that future violations be deterred. In Brown itself, neither declaratory nor injunctive relief was available to the plaintiffs, nor – without a prosecution – could there be suppression of illegally obtained evidence. For those plaintiffs it was damages or nothing. We made clear, however, that the tort remedy is not boundless. Claimants must establish grounds that entitle them to a damages remedy, in addition to proving that their constitutional rights have been violated." Martinez v City of Schenectady, 97 NY2d 78, 83 (2001). The Martinez Court then concluded that

". . . [r]ecognition of a constitutional tort claim. . . [would be] neither
necessary to effectuate the purposes of the State constitutional protections plaintiff invokes, nor appropriate to ensure full realization of . . . [plaintiff's] rights . . . Unlike in Brown, the deterrence objective can be satisfied here by exclusion of the constitutionally challenged evidence. Moreover, plaintiff fails to demonstrate how money damages are appropriate to ensure full realization of her asserted constitutional rights . . . plaintiff has not distinguished her case from that of any criminal defendant who has been granted suppression, or reversal of a conviction, based on technical error at the trial level. Plaintiff has shown no grounds that would entitle her to a damage remedy in addition to the substantial benefit she already has received from dismissal of the indictment and release from incarceration." Martinez v State of New York, supra, at 83-84.
This Claimant had the opportunity to pursue administrative appeals of the disciplinary disposition - which it appears he did[6], but is not mentioned in the proposed claim - and to pursue judicial review through the mechanism of an Article 78 proceeding. Indeed, a properly presented common law remedy in the form of an action for wrongful confinement, would present an opportunity for damages sufficient to make Claimant whole. Any monetary award Claimant seeks for alleged violation of due process concerns would not further the purpose of the constitutional provision allegedly violated, nor make the Claimant whole, thus the Court has no basis to recognize in this case the fourth cause of action, asserting a denial of the right to due process, as a cause of action for which a constitutional tort remedy should be implied. Claimant's fourth cause of action does not have the appearance of merit.

In view of the foregoing, and after balancing all the factors, Claimant's motion [M-69341] for permission to serve and file a late claim is in all respects denied.

February 8, 2005
White Plains, New York

Judge of the Court of Claims

[1] Court of Claims Act § 10(6) states in pertinent part: ". . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . . "
[2] ". . . No person shall be deprived of life, liberty or property without due process of law."
[3] After a knife point attack on an elderly woman, who described her assailant as a black male, State and local law enforcement officials began an investigation and secured a list of the names and addresses of all African American males attending the University located near where the attack occurred. All the students on the list were interrogated in a systematic fashion but no suspects were found. Thereafter, law enforcement officials stopped and spoke to "every nonwhite male found in and around the City of Oneonta." Brown v State of New York, supra, at 176-177. No one was ever arrested for the crime. It was the second class of citizens certified in the class action suit - those who were "stopped, questioned and examined . . . in the absence of any articulable suspicion. . . ." on the street - around whom the decision evolved.
[4] "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized . . . " Art. 1, §12, ¶ 1 New York State Constitution.
[5] "No person shall be denied the equal protection of the laws of this state or any subdivision thereof. No person shall, because of race, color, creed or religion, be subjected to any discrimination in his or her civil rights by any other person or by any firm, corporation, or institution, or by the state or any agency or subdivision of the state. " Art. 1, §11 New York State Constitution.
[6] See Exhibit C, Affirmation in Opposition by Assistant Attorney General.