New York State Court of Claims

New York State Court of Claims

MANLEY v. THE STATE OF NEW YORK, #2006-030-554, Claim No. 111768, Motion No. M-71376


Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Third-party defendant’s attorney:

Signature date:
July 5, 2006
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers numbered 1 to 4 were read and considered on Claimant’s motion

for late claim relief brought pursuant to Court of Claims Act §10(6):

  1. Motion for Permission to File a Late Claim by Tony Manley, Claimant, and attachments
  1. Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General and attached exhibits
  1. Reply by Tony Manley, Claimant
  1. Filed Papers: Claim Number 111768
Tony Manley alleges in Claim Number 111768 that on June 20, 2005 he was assaulted by correction officers at Downstate Correctional Facility while being given conflicting directions by named officers to go to the mess hall and/or leave the mess hall. [Claim Number 111768, ¶2]. He also asserts that he served a Notice of Intention to file a claim upon the Attorney General, but does not indicate when and by what means the Attorney General’s Office was served. [ibid. ¶5]. The Claim itself is filed-stamped by the Clerk’s Office on December 23, 2005, but no affidavit of service attests to either personal service upon the Attorney General or service by certified mail, return receipt requested.

In the current motion, Claimant seeks permission to serve a late claim upon the Attorney General’s Office, and references the already filed claim as a proposed claim. He indicates generally that he “had no knowledge that the Attorney General is the party to have been served via certified [mail], return receipt requested”; that there is no prejudice to the State because only a few weeks have passed; and that the State already has notice of the essential facts, because same were “outlined in the Notice of Intention that was properly served upon them some time ago.” [Motion for Permission to File a Late Claim, ¶¶1,2, 3].

In her Affirmation in Opposition, the Assistant Attorney General acknowledges receipt on August 26, 2005 of a document entitled Notice of Intention to File a Claim, but indicates that it is insufficiently detailed concerning the nature of the claim. [Affirmation in Opposition by Mary B. Kavaney, Assistant Attorney General, Exhibit 2]. Indeed, the document contains a caption venued in Dutchess County Supreme Court, contains what appears to be an index number from that court or other file reference, references the City of New York as well as the Superintendent of Downstate Correctional Facility as Respondents, indicates that the date of the incident is June 20, 2005 and says only that “I sustained unlawful injury by downstate correctional officers.” [See id.]. The Assistant Attorney General points out the deficiencies in the presentation for late claim relief - addressing the factors in order, and treating the notice of intention to file a claim as the proposed claim - arguing that none of the factors have been satisfied.

In a Reply submitted with the Court’s permission, Claimant attempts to remedy his initial presentation.

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated 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 serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available.[2] The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . .” Court of Claims Act § 10(6). Here, the applicable statute of limitations is one (1) year, thus the motion is timely. Civil Practice Law and Rules §215(3).

A claim appears to be "meritorious" within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that 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 (Ct Cl 1977). Claimant need not establish a prima facie case at this point, but rather the appearance of merit. See e.g. Jackson v State of New York, Claim No. None, M-64481 (Midey, J., February 28, 2002).

Claimant’s mere incarceration, and movement within the system, and any asserted difficulty in obtaining representation by counsel or otherwise conferring with counsel, does not constitute a reasonable excuse in the nature of a disability, or otherwise. See Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl 1978). There must be some showing that the circumstances of his incarceration prevented claimant from taking effective steps to perfect his claim, or contact an attorney. Bommarito v State of New York, 35 AD2d 458, 459 (4th Dept 1971). Claimant has made no such showing, thus this factor weighs against him.

Similarly, his claim of lack of knowledge of the law and an inability to retain counsel do not constitute acceptable excuses. Innis v State of New York, 92 AD2d 606 (2d Dept 1983), affd 60 NY2d 654 (1983); Musto v State of New York, 156 AD2d 962 (4th Dept 1989).

The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting Claimant’s motion. While the Court agrees that the Notice of Intention received by the Attorney General’s Office is not explicit with regard to the alleged occurrence, the accrual date given and the location at Downstate provides, albeit minimally, information that something occurred with this inmate on that date, to provide notice and an opportunity to seek out unusual incident reports or other memoranda that might memorialize an altercation. The passage of time has not been so great that the State’s ability to investigate is impeded to its prejudice. cf. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one-half months from date of accrual). Accordingly, these factors weigh in favor of granting the motion.

As noted, Claimant need not establish his claim prima facie, but rather show the appearance of merit. Jackson v State of New York, supra. If the allegations in the claim are accepted as true for the purposes of the motion, Claimant has made the requisite showing of merit in order to permit late filing of his claim.

Although the State has not referred to the already served and filed claim at all, it is clear that Claimant intended it as his proposed claim for late claim purposes, since the number is marked right on the motion, and he refers to it in the text of his motion papers. In Claim Number 111768, a date of accrual is alleged, as are a specific location and the names of the correction officers involved.

To avoid duplication, and recognizing the jurisdictional infirmities of the already served and filed claim, to wit, because the notice of intention - assuming it was served properly in the first instance since there is no affidavit of service, or other proof of service presented - does not operate to extend the period within which to serve and file a claim because it is bereft of any detail concerning the “time when and place where such claim arose, [and] the nature of same” as required [See Court of Claims Act §11 (b)]. The claim itself is not timely since it was served more than ninety (90) days after it accrued [See Court of Claims Act §10(3-b)]. The Court does not have jurisdiction to hear the claim, and it is subject to dismissal.

Accordingly, in the interest of judicial economy, the Court hereby dismisses in its entirety Claim Number 111768, but grants Claimant’s motion for permission to serve and file a late claim exactly like Claim Number 111768: the proposed claim for late claim purposes. Claimant is directed to serve his claim upon the Attorney General within forty-five (45) from the date of filing of this decision and order in the Clerk’s Office, and to file a Claim identical to the proposed Claim with the Chief Clerk of the Court of Claims within the same time period, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to §§ 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.

July 5, 2006
White Plains, New York

Judge of the Court of Claims

[2]. The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)[“Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted).”]