4,5 Filed Papers: Claim No. 109623; Answer
After carefully considering the papers submitted and the applicable law
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. 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 statutes of limitations are two (2) years with
respect to any wrongful confinement [See Ramirez v State of New
York, 171 Misc 2d 677 (Ct Cl 1997)], and three (3) years with respect to
other causes of action, thus the motion is timely. Civil Practice Law and Rules
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 Affidavit in Support of this motion, Claimant indicates that he has not
found an attorney to represent him, was unaware of the filing periods provided
for in the Court of Claims Act and, as an incarcerated person, was unable to
confer with counsel, had limited access to a law library and, even with limited
access to a law library, would find it of limited utility since he did not know
what books to ask for. [Affidavit in Support, ¶¶ 1-4]. He also states
that the Defendant ". . . has knowledge and records generated during the court
proceeding with respect to this denial [of access to courts] . . . can interview
the State employee in this matter. The statute of limitation has not expired.
The State was not prejudice[d] in any manner by the failure to file a notice of
intention to file a claim." [Affidavit in Support, ¶ 5]. He asserts that
he has no other remedy.
The proposed Claim itself sets forth eight different "claims," referred to
hereinafter as causes of action. The first cause of action alleges Claimant was
denied procedural due process, in violation of the Due Process Clause of the
Fourteenth Amendment to the United States Constitution in the course of a Tier
III disciplinary hearing conducted at Sing Sing Correctional Facility (hereafter
Sing Sing) on January 20, 2003. Despite obtaining a reversal and expungement of
the determination against him on October 28, 2003, he claims he was forced to
serve ninety (90) days in the Special Housing Unit (hereafter SHU). He demands
$25,000.00 on this cause of action.
The second cause of action alleges Claimant was denied procedural due process,
in violation of the Due Process Clause of the Fourteenth Amendment to the United
States Constitution in the course of a Tier II disciplinary hearing at Five
Points Correctional Facility (hereafter Five Points) on June 4, 2004. He
asserts that the misbehavior report initially charging him was later amended to
include an additional inmate, and Claimant was not given advance notice of the
amendment. He demands $25,000.00 in damages on this cause of action.
The third cause of action alleges he was denied his Constitutional Right of
Access to Courts when his application to extend the time within which to perfect
his appeal of the proceedings stemming from the second cause of action was
denied on October 29, 2004. He demands $25,000.00 in damages on the third cause
The fourth cause of action alleges he was denied access to courts and equal
application of the law when the Appellate Division, First Department, denied his
application to proceed as a poor person with reference to an appeal on December
21, 2004. He then states that "[t]his claim is filed within 90 days, thus, no
notice of intention to file a claim has been filed." [proposed Claim, ¶
31]. He demands $25,000.00 on this fourth cause of action.
The fifth cause of action alleges he was denied access to courts and equal
application of the law by the Appellate Division, First Department when it
denied his application to proceed as a poor person with reference to a lawsuit
against Brian G. Anderson of the New York City Records Management Office on
December 21, 2004. Here, too, he indicates that no notice of intention was
filed because the claim is filed within ninety (90) days. He demands $25,000.00
in damages on this fifth cause of action.
The sixth cause of action alleges that Claimant was denied access to courts and
equal application of the law by the Appellate Division, First Department when it
denied his application to proceed as a poor person with reference to a lawsuit
against the New York City Police Department on September 21, 2004. He demands
$25,000.00 in damages on the sixth cause of action.
In the seventh cause of action, Claimant seeks reimbursement of $8.20 to cover
the cost of copies he requested on July 30, 2004, at some unspecified location,
that were never made. Administrative appeals filed on November 8, 2004 and
December 22, 2004 are still pending.
In the eighth cause of action, Claimant seeks reimbursement for his personal
property - specifically a typewriter and a hot pot - damaged upon his transfer
from Sing Sing to Cayuga Correctional Facility (hereafter Cayuga). He indicates
that he filed an administrative appeal on December 14, 2004 seeking
reimbursement for the full amount of $54.00 which is still pending. He also
indicates that this cause of action is related to a Claim already filed with
this court under Claim Number 109623, for personal property loss he alleges he
suffered, including these two items, when he was transferred from Sing Sing to
As an initial matter, Court of Claims Act §10(9) provides that an inmate's
claim for loss of personal property may not be filed until the administrative
remedies provided by the applicable regulations have been exhausted.
[See 7 NYCRR Part 1700]. Thereafter, ". . . [s]uch claim must be filed
and served within one hundred twenty days after the date on which the inmate has
exhausted such remedy." Court of Claims Act §10(9). Claimant has not
exhausted his administrative remedies with respect to his seventh and eighth
cause of action and, with respect to his eighth cause of action, there has
already been a claim filed addressing the alleged loss under Claim Number
109623. The Court does not intend to address the merits of Claim Number 109623
by referring to it herein, but rather notes that Claimant may not simply file
another claim or make the within application with respect to a matter that is
already pending in the Court of Claims and has not been adjudicated.
With respect to the remaining causes of action, the Court hereby addresses the
factors set forth at Court of Claims Act §10(6).
Claimant's 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). 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.
Similarly, his 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).
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. Indeed, Claimant has not addressed these factors except to say that the
State was "aware" that there were administrative appeals pending and/or other
civil proceedings brought pursuant to Article 78 of the Civil Practice Law and
Rules. While in some cases notice may be inferred if the occurrence would be
noted and investigated in the normal course, it cannot be assumed the State had
actual knowledge of the facts giving rise to the claim merely because it owns
and maintains a correctional facility, or because a report of an incident was
filed. Wolf v State of New York, 140 AD2d 692 (2d Dept 1988) (accident
report filed and State employee involved in accident);
Carmen v State of New York, 49 AD2d 965, 966 (3d Dept 1975) (police
accident report and internal memoranda filed); Turner v State of New
York, 40 AD2d 923 (3d Dept 1972) (not enough that State maintains
facility). Indeed, since the dates of the incidents alleged State employees
who may have served as witnesses may have left State employment. The passage of
time has been great enough that the State's ability to investigate is impeded to
its prejudice. Broncati v State of New York, 288 AD2d 172 (2d Dept
2001). On balance these factors taken together weigh against granting the
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 not made the requisite showing of merit in order to permit
late filing of his claim.
The Assistant Attorney General points out that Claimant's first, second and
third causes of action are the subject of Article 78 proceedings pending in the
Appellate Division, Third Department. Notably, they also allege violations of
the United States Constitution and could be pursued pursuant to 42 USC
§1983. No cause of action against the State of New York exists for alleged
violations of an individual's rights under the United States Constitution
[See Welch v State of New York, 286 AD2d 496, 498 (2d Dept 2001);
Zagarella v State of New York, 149 AD2d 503 (2d Dept 1989); Davis v
State of New York, 124 AD2d 420, 423 (3d Dept 1986)], in that the State is
not a "person" amenable to suit pursuant to 42 USC §1983.
The fourth, fifth and sixth causes of action, too, alleging a denial of access
to courts and equal protection of the law among other things, appear to be
federal constitutional claims. Moreover, alternative remedies via the appeal
process are apparently still pending or available with regard to the fourth,
fifth and sixth causes of action, assuming these were even lawsuits involving
the State of New York. The fourth cause of action stems from a denial by an
appellate court to allow Claimant's appeal as a poor person. Such discretionary
denials rest in the discretion of the deciding court. See Howell v
Francesco, 190 Misc 2d 188 (Civ Ct, Richmond County 2001). The fifth and
sixth causes of action appear to stem from lawsuits against individuals employed
by the City of New York or the City agencies employing them. It is axiomatic
that the Court of Claims is a court of limited jurisdiction empowered only to
hear claims brought against the State of New York and certain limited ancillary
matters. Court of Claims Act §9.
If these alleged violations of the "constitution" are intended to refer to
violations of the New York State Constitution, Claimant has nonetheless not
demonstrated within the analysis set forth in Brown v State of New York,
89 NY2d 172 (1996), that a constitutional tort remedy should apply.
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
AD2d 837 (4th Dept 2000); Zaire v State of New York, Claim No. 99383
(Mignano, J., filed July 30, 2002).
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). Here, the Court is not convinced that any
monetary recovery would further the purpose of the underlying constitutional
provisions nor, indeed, make the Claimant whole.
Accordingly, and after balancing all the factors set forth in Court of Claims
Act §10(6), including the lack of any appearance of merit to the
allegations asserted in the proposed Claim, Claimant's Motion No. M-69705 for
permission to serve and file a late claim
in all respects denied.