The court read and considered the following papers on defendant's motion to
dismiss the claim for lack of jurisdiction and claimant's cross-motion for
permission to file a late claim: Notice of Motion, Affirmation and Exhibits;
Notice of Cross-Motion, Affirmation and Exhibits, Affirmation in Opposition to
Cross-Motion; Reply Affirmation.
The four causes of action in the claim that are the subject of defendant's
motion to dismiss all arise from an incident that allegedly occurred sometime in
March, 2004 (the claim does not specify the date) in which Valerie Riley, an
employee of the New York State Liquor Authority, "intentionally and in an
unprivileged manner and without legal justification, made a harmful and
offensive touching with the person of the claimant, and then committed a battery
upon the person of the claimant" (Claim, ¶ 4). The four causes of action
sound in battery, intentional infliction of emotional distress, gross negligence
and violation of Executive Law §296.
The claim was served and filed on December 16, 2004, approximately nine months
after accrual. As defendant notes, claims for intentional and non-intentional
torts are required to be served and filed within 90 days of accrual (Court of
Claims Act §§ 10, 10[3-b]). Since the defense that the court lacks
jurisdiction over the claim due to claimant's failure to have served and filed
it within the prescribed statutory period was duly raised in the answer with
sufficient particularity (Court of Claims Act §11[b]), defendant's motion
to dismiss must be, and hereby is, granted for such reason.
With respect to claimant's cross-motion, Court of Claims Act §10(6) grants
the court the discretion to allow the filing of a late claim after consideration
of all relevant factors, including whether claimant's delay was excusable,
whether defendant had notice of the relevant facts and circumstances and the
opportunity to investigate during the statutory 90-day period, whether defendant
would suffer substantial prejudice from an order allowing late filing, whether
claimant has an alternate remedy and whether the proposed claim appears
meritorious. The application for such relief must be made prior to the
expiration of the underlying statute of limitations for each of the four causes
When claimant's cross-motion for late filing relief was made in August 2005,
the underlying statute of limitations for the intentional tort of battery (one
year – CPLR 215) had already expired. Thus, Claimant's first cause of
action is beyond judicial recall.
It has long been the law that public policy prevents the assertion of a cause
of action for intentional infliction of emotional distress against the State of
New York (Wheeler v State of New York, 104 AD2d 496; DeLesline v State
of New York, 91 AD2d 785, lv denied 58 NY2d 610; Monteiro v State
of New York, Ct Cl, Midey, J., decision and order dated 6/26/02, UID No.
2002-009-27). The second cause of action is therefore legally defective and
demonstrably without merit (see Matter of Santana v New York State Thruway
Auth., 92 Misc 2d 1).
With respect to the third and fourth causes of action, the inadequacy of the
papers submitted by claimant prevent any sort of intelligent review of the
statutory factors. Nothing was submitted from claimant, only affirmations from
counsel who is without any personal knowledge of the subject events. No facts
are alleged from which it could be concluded that any of the causes of action
arguably appear meritorious.
Moreover, since the underlying factual basis of counsel's conclusory
allegations is not stated, it is not possible to address whether defendant had
notice of the relevant facts and the ability to investigate within the statutory
period, or whether any prejudice would be suffered if the application were
It is claimant's burden to submit papers demonstrating a sufficient factual
predicate for the exercise of the court's discretion under §10(6). This
claimant has failed to do. Accordingly, the cross-motion is denied.