New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2005-030-516, Claim No. NONE, Motion No. M-69524


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:
March 25, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 4 were read and considered on Claimant's motion

number M-69524 for permission to serve and file a late claim:

1-3 Notice Motion; Motion for Permission to file a late claim by Waverly Johnson, Claimant; proposed Claim

  1. Affirmation in Opposition by Jeane L. Strickland Smith, Assistant Attorney General, and attached exhibit
After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

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.[1] 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).

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, thus the motion is timely. Civil Practice Law and Rules §214.

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, M-64481 (Midey, J., February 28, 2002).

In his proposed claim, Claimant alleges that on December 28, 2003 Defendant's agents - correction officers at Green Haven Correctional Facility (hereafter Green Haven) - assaulted him in the course of their employment, near the nurse's station, while he was having a low blood sugar reaction as a result of his diabetes. [Proposed Claim, ¶3]. He asserts that correction officers "threw . . . [him] to the ground and one of the officers placed . . . [Claimant's] right leg in a submission hold by pushing . . . [Claimant's] right leg behind . . . [his] back . . ." [Id]. Claimant felt a "pop" in his right knee, causing him to scream. He was then handcuffed and taken to the clinic for treatment for his low blood sugar and for injury to his right knee. [Id]. Claimant asserts that his New York State Constitutional Right, "pursuant to Article 1, §5 . . . to be free from Cruel and Unusual Punishment . . . " was violated by these actions. [Proposed Claim, ¶¶ 2, 4 and 12].

Claimant states that he suffered a partial tear on his right knee, requiring surgery and also asserts that the injury suffered is permanently disabling. [Proposed Claim, ¶¶ 7, 8 and 9]. He provides a drawing which he identifies as a rendering of "a right leg and knee" and which he has marked as showing that he has a scar on his right knee that is 5 ½ inches long and ½ inch wide where the surgery was performed. [Proposed Claim, ¶¶ 13 and 14].

In his Motion for Permission to file a late claim, Claimant states that since the incident occurred on December 28, 2003, the motion is not time barred; and that the delay in filing is excusable because he is not a lawyer, and had no access to professional legal counsel. [Motion for Permission to file a late claim, ¶¶ 1 and 2]. He writes that "[t]he state had notice of the essential facts constituting the claim in that medical personnel in the prison clinic were aware of my injury, and the state also had opportunity to investigate the cause of this injury, which is the subject of this claim, by simply questioning the guards and other persons who were present inside of Green Haven . . . on the west side of the facility at the B and C corridor at 10 pm by the Nurse's sick call station at the time of my assault and injury." [ibid. ¶ 3]. Claimant indicates he has no other available remedy for the injury and suffering he sustained because of the alleged assault. [ibid ¶4].

In her Affirmation in Opposition the Assistant Attorney General argues that Claimant has not presented a reasonable excuse for his failure to timely file a claim accruing more than one (1) year previously, or other legally acceptable excuse for the delay. [Affirmation in Opposition, ¶¶ 3 and 4]. She also argues that Claimant has not established the appearance of merit as required, and points out that if Claimant was experiencing low blood sugar, it is unclear how this affected his ability to perceive the events of December 28, 2003, as well as how it relates to his alleged injuries.[ibid. ¶5]. She states there is insufficient detail to assess exactly what happened, including who was involved in the alleged incident, since no correction officers or other employees are named. [Id].

His mere incarceration, and movement within the system, and the asserted difficulty in obtaining representation by counsel or otherwise conferring with counsel, does not constitute a reasonable excuse in the nature of a disability, or otherwise. See Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl 1978). Similarly, any claim of lack of knowledge of the law and an inability to retain counsel do not constitute acceptable excuses. Innis v State of New York, 92 AD2d 606 (2d Dept 1983), affd 60 NY2d 654 (1983); Musto v State of New York, 156 AD2d 962 (4th Dept 1989). There must be some showing that the circumstances of his incarceration prevented claimant from taking effective steps to perfect his claim, or contact an attorney. Bommarito v State of New York, 35 AD2d 458, 459 (4th Dept 1971). Claimant has made no such showing, thus this factor weighs against him.

The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, also weigh against granting Claimant's motion. There is no indication that a use of force report was written up, and no employees are named to facilitate a State investigation of an incident occurring more than one (1) year ago. The passage of time has been enough so that the State's ability to investigate is impeded to its prejudice. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one-half months from date of accrual). Accordingly, these factors weigh against granting the motion.

As noted, Claimant need not establish his claim prima facie, but rather must 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 made the requisite showing of merit in order to permit late filing of his claim. Use of physical force against an inmate is governed by statute, regulation, and the attendant case law. The statute provides in pertinent part ". . . [w]hen any inmate . . . shall offer violence to any person, . . . or resist or disobey any lawful direction, the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline,[and] to secure the persons of the offenders . . . " § 137(5) NY Correction Law (McKinney's 2001). As set forth at 7 NYCRR § 251-1.2 (a), an officer must use ". . . [t]he greatest caution and conservative judgment . . . in determining . . . whether physical force is necessary; and . . . the degree of such force that is necessary." Once an officer determines that physical force must be used, ". . . only such degree of force as is reasonably required shall be used." 7 NYCRR § 251-1.2(b). The State may be liable for the use of excessive force by its employee under the concept of respondeat superior. See Jones v State of New York, 33 NY2d 275, 279 (1973). As noted earlier, no employees are named, and no medical records are provided. No description of exactly what occurred leading up to the alleged assault, or how low blood sugar symptoms relate to the claim, has been set forth. Although Claimant asserts he was injured, no medical documentation is provided.

Moreover, if this is an attempt to assert a constitutional tort cause of action, given that a properly presented common law remedy would apply, such a cause of action will not lie. Brown v State of New York, 89 NY2d 172 (1996).[2]

In short, there is nothing to show that Claimant was even assaulted, or that excessive force was used.

Accordingly, Claimant's motion [M-69524] for permission to serve and file a late claim is hereby denied in its entirety.

March 25, 2005
White Plains, New York

Judge of the Court of Claims

[1] The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant's favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)["Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted)."]
[2] The factors the Court must consider to determine if a cause of action for a State 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. In New York, constitutional provisions are presumptively self-executing. Brown at 186. Violation of every self-executing provision will not always support a claim for damages however. Indeed, since Brown was decided, courts appear to have been reluctant to expand its applicability. See, e.g., Martinez v City of Schenectady, 97 NY2d 78 (2001); Harvey v State of New York, 281 AD2d 846 (3d Dept. 2001); Masi Management, Inc. v Town of Ogden, 273 AD 2d 837 (4th Dept. 2000). Only where it is necessary to ensure the effectiveness and promote the purposes of the allegedly violated provision will a constitutional tort remedy be implied. (Brown at 191).