New York State Court of Claims

New York State Court of Claims

HAKAJ v. STATE OF NEW YORK, #2006-018-505, Claim No. 111124, Motion Nos. M-70573, M-70943, CM-70694


Defendant's motion to dismiss is granted. Claimant's cross motion to file a late claim is granted, and his motion for the assignment of counsel is denied.

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):
M-70573, M-70943
Cross-motion number(s):
Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: Timothy P. Mulvey, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 19, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


The Court has pending three motions, which will all be decided together. The first

motion is a pre-answer motion to dismiss the claim (Claim No. 111124) for failing to timely serve a notice of intention or to serve and file a claim in accordance with Court of Claims Act

§ 10(3-b). Claimant brings a cross-motion for permission to file a late claim, which Defendant opposes. Claimant also brings a motion for permission to proceed as a poor person in accordance with CPLR Article 11.
Motion to Dismiss,
Defendant argues that the claim is untimely in that no notice of intention or claim was served within 90 days of the date of accrual as required by Court of Claims Act § 10(3-b). In the claim, Claimant, an inmate at Watertown Correctional Facility, asserts that on February 6, 2005 at approximately 11:45 a.m., he was assaulted by two correction officers. Claimant served the Attorney General's Office with a notice of intention on May 16, 2005. The claim was served upon the Attorney General on July 8, 2005, and filed with the Clerk of the Court on July 11, 2005. Claimant had until May 9, 2005 to serve a notice of intention or to file and serve a claim which was not done. Defendant properly raises this objection by this pre-answer motion to dismiss (Court of Claims Act section 11[c]).

Compliance with the time frames set forth in Court of Claims Act § 10 constitutes a jurisdictional prerequisite to the commencement and maintenance of a claim against the State (Buckles v State of New York 221 NY 418; Byrne v State of New York 104 AD2d 782). The Court is without authority to disregard the failure to comply with the statutory time frame. Since no notice of intention was served and no claim was served and filed within 90 days of February 6, 2005, Defendant's motion must be granted and the claim dismissed.
Late Claim Application
Claimant brings a late claim application pursuant to Court of Claims Act § 10(6) seeking permission to file a late claim, in anticipation that the filed claim might be dismissed.

Court of Claims Act § 10(6) allows a movant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act § 10 to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act § 10[6]). Movant's motion is timely (Court of Claims Act § 10[6]; CPLR § 215[3]).

As a component of any late claim application, the proposed claim containing all of the information required by § 11 of the Court of Claims Act must be provided (Court of Claims Act § 10[6]). Claimant has not attached any proposed claim. This alone could be grounds for denying the application (see Goble v State of New York Ct Cl, unpublished decision of J. Ruderman, dated July 16, 2001, UID #2001-010-047, Cl No. 99390, Motion No. M-63559). However, the Court will treat the filed claim which was dismissed as the proposed claim for purposes of addressing this motion.

Turning to the factors in the statute, the first, whether the delay in filing the claim is excusable, weighs against granting Movant's application. Claimant raises several reasons to excuse his delay in filing a timely claim. First, he argues that for the first 68 of the 90 days following the incident, he either was in the locked "Box" or being transported between various correctional facilities and did not have access to his legal documents. Even if the Court found this to be an acceptable excuse for the first 68 days, which it does not, there is no valid excuse why a timely claim could not have been filed and served during the remaining 22 days (cf, Nolley v State of New York, Ct Cl, Lane, J., filed June 4, 1997, Claim No. None, Motion No. M-55372 [inmate transfer to other facilities was not found to be a sufficient excuse]).

Claimant also argues that he has difficulty with the English language and needed the help of the law library clerks in order to prepare his claim. Claimant is originally from Yugoslavia and speaks primarily his native language of Albanian. This also has been found to not be a valid excuse (Rodrigues v State of New York 143 AD2d 993). Finally, Claimant argues that Defendant's own employees placed him in the lock "Box," and therefore, made it virtually impossible for him to timely file a claim. As a result, Claimant argues that the Defendant should be estopped from raising the issue of untimeliness since the "statute of limitations" should have been tolled for the first 68 days of the 90 days immediately following the date of accrual. Claimant has alleged no facts which would warrant consideration of an estoppel argument.

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Claimant alleges that the State had timely notice because Claimant filed a formal complaint of employee misconduct against the correctional officers involved in his alleged assault on February 15, 2005, only nine days after the incident. The Court finds that this is sufficient notice of the incident and gave the State the opportunity to do a timely investigation. These factors weigh in favor of granting Claimant's motion.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11). With the absence of opposition, and relying on Claimant's verified claim previously filed with the Clerk of the Court claimant has set forth, at least minimally, sufficient information for the Court to find reasonable cause to believe that a valid cause of action may exist.

The final factor is whether the proposed claimant has any other remedy available. It does not appear from the facts as alleged that claimant would have any other remedy.

Accordingly, based upon the foregoing Movant's application is granted. Claimant is directed to file and serve his claim in accordance with the Court of Claims Act and all other applicable rules within 60 days of the date this Decision and Order is filed with the Clerk of the Court.
Application for Poor Person Relief
Claimant brings a motion requesting the appointment of counsel to represent him pursuant to Article 11 of the CPLR. He sets forth, by unsworn affidavit, the amount and sources of his income and a list of his property. Although Claimant has not set forth facts relating to the merit of his claim, as required by CPLR 1101(a), the necessary information was provided in the verified claim previously filed with the Clerk of the Court, which the Court has relied upon to determine this motion (see Standley v State of New York Ct. of Claims, J. McNamara, filed March 7, 1997, Claim No. 95051, Motion No. M-54570).

More problematic, Claimant has failed to provide an affidavit of service indicating service of this motion has been made upon the Attorney General or the County Attorney. CPLR 1101(c) requires that a copy of the notice of motion also be served upon the County Attorney in the county in which the action is triable. The motion can be denied solely on the ground that the County Attorney has not been served (see Bowman v State of New York 229 AD2d 1024). The fact that Defendant State of New York has not responded to this motion, in the absence of the affidavit of service, leads this Court to question whether proper notice of Claimant's request was provided to the State as well. However, even if the County Attorney and the Attorney General have been served, Claimant's motion would still be denied.

The appointment of counsel in this type of case, which is for personal injuries caused by an alleged assault, is not required by the constitution or by statute; it is discretionary (see Matter of Smiley 36 NY2d 433; Stephens v State of New York 93 Misc 2d 273). For litigants involved in private litigation, absent statutory authority therefor, the courts have no authority to direct the provision of counsel or to require compensation of retained counsel out of public funds (Matter of Smiley, supra). Furthermore, tort cases are typically handled by attorneys on a contingency basis. After reviewing the claim and the circumstances of this case, the Court will not exercise its discretion to appoint an attorney to appear without compensation in this matter (see Matter of Smiley supra; Courtwright v State of New York Ct of Claims filed March 20, 1997, J. Corbett, Claim No. 95042, Motion No. M-54516).

Based upon the foregoing, Claimant's motion is DENIED.

January 19, 2006
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding these motions:

Motion No. M-70573

Notice of Motion...............................................................................1

Affirmation of Timothy P. Mulvey, Esquire, Assistant

Attorney General, in support, with exhibits attached thereto............2

MotionNo. CM-70694

Notice of Cross-Motion.....................................................................3

Affidavit of Benny Hakaj, sworn to on August 26, 2005, in


Affirmation of Timothy P. Mulvey, Esquire, Assistant

Attorney General, in opposition.........................................................5

Motion No. M-70943

Unsworn Affidavit of Benny Hakaj, in support...................................5