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
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
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
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.