New York State Court of Claims

New York State Court of Claims

DOE v. THE STATE OF NEW YORK, #2006-029-608, Claim No. None, Motion No. M-72375


Late filing motion (Court of Claims Act § 10[6]): statutory factors favor granting of motion but proposed claim is defective because it violates standards of proper pleading. Motion denied without prejudice to resubmission with a proper proposed claim.

Case Information

1 1.The court has sua sponte amended the caption to protect claimant’s identity, in view of the nature of the allegations of the proposed claim. The Clerk of the Court is directed to seal this file pursuant to Civil Rights Law §50-b.
Claimant short name:
Footnote (claimant name) :
The court has sua sponte amended the caption to protect claimant’s identity, in view of the nature of the allegations of the proposed claim. The Clerk of the Court is directed to seal this file pursuant to Civil Rights Law §50-b.
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:
ELIOT SPITZER, ATTORNEY GENERALBy: Dewey Lee, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 20, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant’s motion for permission to file a late claim. [2] He alleges that on February 15, 2006, his third day on the job as a correction officer at Green Haven Correctional Facility, he was sexually assaulted by two fellow officers. He alleges that defendant is responsible for the conduct of the two officers, that defendant had prior knowledge of their propensities to commit such acts and that his complaints were not properly handled in accordance with applicable Department of Correctional Services policy.

Court of Claims Act § 10(6) grants the court the discretion to allow the filing of a late claim upon consideration of all relevant factors, including whether claimant’s delay was excusable, whether defendant had notice of the relevant facts and the timely opportunity to investigate, whether defendant would suffer substantial prejudice should the motion be granted, whether claimant has an alternate remedy and whether the proposed claim appears meritorious.

As defendant notes, claimant has not presented a reasonable excuse for his failure to timely file a claim; however, such is but one factor to consider and does not require denial of the motion (Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s and Firemen’s Retirement System, 55 NY2d 979). Defendant does not discuss the notice, opportunity to investigate, lack of substantial prejudice and alternate remedy factors, which entitles the court to presume that such factors weigh in favor of granting the motion (Cole v State of New York, 64 AD2d 1023; see also Calzada v State of New York, 121 AD2d 988), a conclusion amply justified by claimant’s unrefuted allegations of having promptly notified DOCS officials of the alleged incidents.

With respect to what is often described as the most important of the statutory factors – the appearance of merit – defendant submits the mere conclusion that claimant “must assert a claim which appears to be meritorious . . . [which he] has failed to do,” without addressing any of the factual or legal arguments presented by claimant. Defendant does not explain the basis for its conclusion.

In order for a proposed claim to appear to have the appearance of merit within the meaning of the statute, the proposed claimant need only establish that it 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 this low threshold cannot be met and the claim is patently without merit, it would be meaningless and futile for the Court to grant the application notwithstanding the court’s analysis of the other statutory factors (see Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729).

Application of the “well-settled principle that ‘[f]acts stated in a motion for leave to file a late claim against the State are deemed true for the purpose of [the] motion, when not denied or contradicted in opposing affidavits.’ (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976)” [3] requires the court to accept the truth of claimant’s factual allegations in deciding this motion. Nevertheless, the court cannot find that the proposed claim appears to be meritorious, despite claimant’s unrefuted factual allegations, because the proposed claim is so improperly drafted as to prevent rational analysis. That document reads like an appellate or post-trial brief, with various sections including “summary of argument” and “argument”, insufficient identification of the various causes of action claimant wishes to pursue and as much detail – entirely superfluous to a pleading – as a deposition transcript.

Court of Claims Act § 10(6) requires that a copy of the “claim proposed to be filed” accompany a motion for permission to late file. When the statute later directs the court to consider whether “the claim appears to be meritorious,” it is that proposed claim that is being referred to. Although the “court's concern is not so much whether a particular pleading properly states a cause of action, but whether claimant indeed has a cause of action” (Matter of Santana v New York State Thruway Auth., supra, 92 Misc 2d 1, 10) and its inquiry is not limited to the four corners of the proposed claim (see Mamedova v City University of New York, 13 Misc 3d 1211[A] [Ct Cl, 2006]), it would not be proper for the court to grant permission to file a claim that so violates basic rules of pleading, including those set forth in CPLR 3014, so that identification of the specific causes of action attempted to be alleged, and drafting of a responsive pleading, would be difficult if not impossible. The court sometimes, in granting a late filing application, requires minor revisions in a proposed claim to insure that the claim complies with the Court of Claims Act and properly states a cause of action. Here, the problems are far too pervasive to be addressed in such a manner.

To summarize, although claimant’s unrefuted factual allegations require the conclusion that claimant possesses an apparently meritorious claim within the meaning of Court of Claims Act § 10(6), the court cannot find an appearance of merit to the specific proposed claim submitted on this motion because that document, as a pleading, is legally defective and would be subject to a motion pursuant to CPLR 3024 paragraph (a) and perhaps (b) before a responsive pleading was required.

Accordingly, the motion is denied, without prejudice to resubmission upon proper papers, including a proposed claim that comports with standards of proper pleading.

November 20, 2006
White Plains, New York

Judge of the Court of Claims

[2]. The court considered the Notice of Motion, Affidavit and Exhibits and defendant’s Affirmation in Opposition.
[3].Chinitz v State of New York, Sise, P.J., Motion No. M-71026, UID No. 2006-028-511 [1/17/06].