New York State Court of Claims

New York State Court of Claims

MACKEY v. THE STATE OF NEW YORK, #2005-030-935, Claim No. 110228, Motion Nos. M-70552, CM-70553


Case Information

REGINA MACKEY The court has amended the caption to properly reflect the defendant and to remove the reference to the purported individual defendant, over whom the court lacks jurisdiction.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has amended the caption to properly reflect the defendant and to remove the reference to the purported individual defendant, over whom the court lacks jurisdiction.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
Gary S. Fish, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Gail Pierce-Siponen, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 9, 2005
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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[3], 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 of action.

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[3]) 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 granted.

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.

November 9, 2005
White Plains, New York

Judge of the Court of Claims