New York State Court of Claims

New York State Court of Claims

McKINNEY v. THE STATE OF NEW YORK, #2005-030-527, Claim No. NONE, Motion No. M-69809


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:
May 9, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 5 were read and considered on the proposed[1] Claimant's motion for permission to serve and file a late claim pursuant to Court of Claims Act §10(6):
1-4 Motion for Permission to file a Late Claim by Anthony McKinney, Claimant, Notice of Intention to File Claim, Verification, proposed Claim and attachments

  1. Affirmation in Opposition to Motion to file a Late Claim by Jeane L. Strickland Smith, Assistant Attorney General 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.[2] 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 Motion for Permission to File a Late Claim the Claimant states that the present application is timely, and that the delay is excusable because he is not a lawyer, had no access to qualified legal assistance or to a law library, and was unable to draft a claim himself. [Motion for Permission to File a Late Claim, ¶¶1-2]. He argues that the State had notice of the essential facts in that "prison officials and medical department staff were aware of the incident, and were negligent in their response and/or totally disregarded the rules, policies and procedures that should have been conducted." [ibid. ¶3]. Claimant asserts that he has no other available remedy. [ibid. ¶ 4].

In the proposed Claim, Mr. McKinney alleges that on March 7, 2004 at approximately 8:00 a.m. at Downstate Correctional Facility (hereafter Downstate), he was drinking a glass of milk when he "became aware of a bloody band-aid in the bottom of . . . [his] glass of milk." [Claim, ¶ 3]. When he told Correction Officer Woods, one of the correction officers, he was advised to show the cup to someone else. When Claimant showed the cup to Correction Officer Graham, the mess hall officer, and Correction Officer McCue, Officer Graham allegedly "took the cup showing it to the messhall workers behind the line and saying ‘what the f***k is this s**t, you guys f****d up'; and then he threw the band-aid in the garbage." [id.]. Claimant went to sick call the following day and asked medical personnel to "perform a blood work-up or any other tests to ensure that . . . [he] was not contaminated by any biohazardous bacterial agents" but was refused, and sent back to his cell. [id.]. He claims that as a result of being denied medical treatment in violation of New York State Department of Correctional Services (hereafter DOCS) policy and procedure concerning treatment of officers and inmates who may come in contact with blood or any other potentially hazardous material he has suffered "immense physical [i.e. loss of approximately twenty (20) pounds] and psychological anguish [i.e. recurring nightmares about contracting terminal diseases]." [ibid. ¶¶ 4, 7]. He also asserts that the employees were negligent in disposing of the band-aid, because official policy requires that it be retained for testing. [ibid. ¶ 5]. The proposed claim states that a Notice of Intention to file a claim was served on the Office of the Attorney General on June 28, 2004. [ibid. ¶ 8].

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). 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, weigh against granting Claimant's motion as well. In the attachments to his proposed Claim, Claimant includes a copy of an "addendum", dated May 17, 2004, to a facility complaint he had apparently originally filed on or about March 9, 2004. The addendum indicates that officers threw the blood stained band-aid away, but does not indicate he was denied medical treatment. The original grievance he filed two months earlier is not attached to his proposed claim. A copy of the original grievance is, however, included as part of the Defendant's submission, and appears to have been addressed and resolved by confirming that regular health inspections occur, in a Superintendent's decision dated March 30, 2004. [Affirmation in Opposition, Exhibit 2]. Claimant did not appeal the Superintendent's decision. In any event, it is over a year since the alleged incident, and Claimant apparently never reported the incident completely. The State's ability to investigate is impeded to its prejudice. Quilliam v State of New York, 282 AD2d 590 (2d Dept 2001) (8 month delay); Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one-half months from date of accrual); Matter of Gallagher v State of New York, 236 AD2d 400 (2d Dept 1997) (State did not receive actual notice of claim until 9 months after accident). Accordingly, these factors weigh against granting the motion.

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.

To establish negligence the following elements must exist: (1) that defendant owed the claimant a duty of care; (2) that defendant failed to exercise proper care in the performance of that duty; (3) that the breach of the duty was a proximate cause of plaintiff's injury; and (4) that such injury was foreseeable under the circumstances by a person of ordinary prudence.

It could be argued that Claimant has at least established that a duty was owed to assure that those serving food in the prison mess hall - ostensibly under the control of DOCS personnel - should perform their functions in compliance with health regulations. Certainly, the image of drinking a cup of milk and finding a blood stained band-aid within is a repugnant one. It could also be argued that when faced with a potential for contact with blood of an undetermined origin DOCS personnel should preserve the source of blood for testing for contamination. Nonetheless, Claimant has not shown any injury - beyond vague allegations of weight loss and sleeplessness - to even determine whether any breach of duty owed to him could be a proximate cause of such injury. As stated by the Assistant Attorney General, Claimant has not shown that any "tangible injury . . . [resulted from] the alleged negligence, only a perceived harm. Claimant has failed to provide a factual or medically documented basis for his fear of contracting a terminal disease." [Affirmation in Opposition to Motion to File Late Claim, ¶ 7]. See also McMoore v State of New York, UID #2000-028-0007, Claim No. 90481 (October 2, 2000, Sise, J.).

Accordingly, and after balancing all the factors set forth at 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-69809 for permission to serve and file a late claim is in all respects denied.

May 9, 2005
White Plains, New York

Judge of the Court of Claims

[1] For ease of reference, the proposed Claimant is hereinafter referred to as Claimant.
[2] 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)."]