New York State Court of Claims

New York State Court of Claims

EVANS v. THE STATE OF NEW YORK, #2006-009-069, Claim No. NONE, Motion No. M-72265


Claimant’s application seeking permission to serve and file a late claim was denied, with the Court finding that claimant failed to establish the appearance of merit.

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:
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 13, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim pursuant to Court of Claims Act § 10(6).

The following papers were considered by the Court in connection with this motion:
“Motion for Permission to File a Late Claim” 1

Affirmation in Opposition, with Exhibit 2

Initially, this Court notes that Court of Claims Act § 10(6) specifically requires that a proposed claim must accompany any application seeking permission to serve and file a late claim. In this particular matter, claimant has failed to include a proposed claim with his moving papers, a defect which, in and of itself, warrants denial of his motion (see Davis v State of New York, 28 AD2d 609).

In his “Motion for Permission to File a Late Claim” (see Item 1), however, claimant did set forth basic allegations of his potential claim, and the Assistant Attorney General representing the State in this application did respond to those allegations in his opposing affirmation (see Item 2). Therefore, despite the defect in claimant’s moving papers, and in the interest of judicial economy, the Court will nevertheless consider the merits of claimant’s late claim application herein.

As set forth in his motion, while an inmate held in the custody of the New York State Department of Correctional Services, claimant alleges that he was denied good time credit after appearing before a Time Allowance Committee on March 27, 2006, and the decision to deny him his good time violated his constitutional rights under the Fifth and Fourteenth Amendments of the United States Constitution.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth 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 file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; 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 Matter of Gavigan v State of New York, 176 AD2d 1117). The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

With regard to excuse, claimant alleges that he did not receive the decision from the Time Allowance Committee until May 23, 2006, and that such delay prevented him from timely serving and filing his claim. Although claimant has not provided any documentary evidence to establish his date of receipt, defendant has not contested this allegation, and therefore, for purposes of this application, the Court finds that claimant has set forth a valid excuse for his failure to timely serve and file his claim.

The factors of notice, opportunity to investigate, and substantial prejudice, most often considered together, were not addressed by either party in the submitted papers. Therefore, based solely on the allegations set forth in claimant’s motion, it appears to this Court that the State would not have had any notice that a claim might be presented, or any opportunity to investigate the circumstances surrounding this potential claim. Despite this lack of notice or opportunity to investigate, however, the Court is of the opinion that the State would not suffer any substantial prejudice should it have to defend this claim, since the issue presented centers around a decision made by the Time Allowance Committee, for which documentary evidence should exist.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1). Unlike a party who has timely filed a claim, however, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199).

In this case, and as set forth above, claimant contends that his constitutional rights under the

Fifth and Fourteenth Amendments were violated when the Time Allowance Committee withheld good time credit. Decisions of a Time Allowance Committee, however, when made in conformity with existing rules and regulations of the Department of Correctional Services, are discretionary, quasi-judicial determinations and, therefore, are immune from liability (Arteaga v State of New York, 72 NY2d 212; see Graham v State of New York, UID No. 2001-015-132, Claim No. 102124, Motion No. M-62876, Collins, J.[1]). Furthermore, the Court of Claims does not have jurisdiction over claims asserting a violation of Federal Civil Rights statutes (Brown v State of New York, 89 NY2d 172, 185; Zagarella v State of New York, 149 AD2d 503; Gittens v State of New York, 132 Misc 2d 399).

Based on the foregoing, therefore, the Court finds that claimant has failed to establish the appearance of merit in this application.

It does not appear that claimant has any other available remedy.

Accordingly, after a review of the papers submitted herein, and after weighing and considering all of the factors set forth under Court of Claims Act § 10(6), and taking into consideration the fact that claimant has failed to assert a meritorious claim, it is the opinion of this Court that claimant should not be allowed to serve and file a late claim.

Accordingly, it is

ORDERED, that Motion No. M-72265 is hereby DENIED.

December 13, 2006
Syracuse, New York

Judge of the Court of Claims

[1]. Unpublished decisions and selected orders of the Court of Claims are available via the Internet at