New York State Court of Claims

New York State Court of Claims

COLSON v. THE STATE OF NEW YORK, #2005-033-113, Claim No. None, Motion No. M-69386


Synopsis



Case Information

UID:
2005-033-113
Claimant(s):
ROBERT COLSON
Claimant short name:
COLSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-69386
Cross-motion number(s):

Judge:
James J. Lack
Claimant’s attorney:
Robert Colson, Pro Se
Defendant’s attorney:
Eliot Spitzer, New York State Attorney GeneralBy: Susan M. Connolly, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 25, 2005
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion by Robert Colson (hereinafter “movant”) seeking an order allowing him to file a late claim pursuant to Court of Claims Act §10(6)[1]. Movant alleges that he was not properly credited with time he served on a parole violation and was held forty days too long in the Suffolk County Jail, in the County of Suffolk, State of New York.
In determining a motion seeking permission to file a late claim, the Court must consider the following six enumerated factors listed in Court of Claims Act §10(6): (1) whether the delay in filing 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 failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; (5) whether the movant has another available remedy; and (6) whether the claim appears to be meritorious. The Court in the exercise of its discretion balances these factors, and, as a general rule, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979).

Movant states that he is not a lawyer and, therefore, the delay is excusable. In addition, he states that he was incarcerated for the first 50 days after the claim arose on unrelated charges. Movant’s excuse amounts to ignorance of the law which is not excusable (Matter of Sandlin v State of New York, 294 AD2d 723).

The second, third and fourth factors (notice of the essential facts constituting the claim; an opportunity to investigate the circumstances underlying the claim; and whether the delay resulted in substantial prejudice to the State) are related. The Court will consider these factors together.

Movant brought a writ of habeas corpus against the State while he was incarcerated at the Suffolk County Jail and an Assistant Attorney General appeared in the matter. The writ demanded that movant be credited with jail time toward his parole. Given that this case will be determined by documents and transcripts, the Court finds that the defendant has a reasonable opportunity to investigate and that it will not be substantially prejudiced. Accordingly, these factors favor movant.

The Court finds that movant has no other available remedy.

While the presence or absence of any one factor is not dispositive, (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979), the most critical factor is the apparent merit of the proposed claim. A movant need only establish that the proposed claim is not patently groundless, frivolous or legally defective and 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). If a movant cannot meet this low threshold and the claim is patently without merit it would be meaningless and futile for the Court to grant the application even if all the other factors in the Court of Claims Act § 10(6) weighed in favor of the movant’s request.

In reviewing the parties’ papers, it appears that movant has failed to show merit. Defendant produces an affirmation of a witness who explains that movant should not have been released and that he was not credited with the jail time while he was incarcerated on local charges. Movant indicates that he was ordered released by a Court, but offers no transcript of a proceeding or written order directing his release. The Court finds this factor does not favor movant.

While the majority of factors favor movant, the most important factor, merit, does not. It would be wasteful of judicial resources and the parties’ time to allow a meritless case to proceed. Based on the foregoing, the Court denies movant’s application to file a late claim.


March 25, 2005
Hauppauge, New York

HON. JAMES J. LACK
Judge of the Court of Claims




[1].The following papers have been read and considered on movant’s motion: Motion for Permission to File a Late Claim dated November 6, 2004 and filed November 10, 2004; Notice of Intention verified November 5, 2004; Affirmation in Opposition to Claimant’s Motion of Susan M. Connolly, Esq. with annexed Exhibit A dated January 19, 2005 and filed January 26, 2005; Notice of Motion to Reargue and/or Renew Motion for Permission to File a Late Claim Pursuant to Section 10(6) of the Ct. Cl. Act with annexed Exhibits dated February 8, 2005 and filed March 2, 2005. Since movant’s original motion had not been decided, this document is being treated and filed as a Reply to Defendant’s Affirmation in Opposition.