According to the Notice of Intention attached to the Claimant’s moving
papers, on May 27, 2006 between 10:30 p.m. and 11:30 p.m. Edward Griffen was
driving his vehicle on State Route 343 in Amenia, New York, when he was
stopped by a New York State Police Officer “without cause”, and
thereafter was “physically assaulted and threatened by said officer.
Claimant managed to leave the vicinity and was subsequently accosted and
assaulted again. He was then falsely arrested, charged with various crimes and
falsely imprisoned.” [Affirmation in Support of Motion to Permit Late
Filing of a Notice of Intention to File a Claim by Alfred C. Laub, Exhibit 1].
There is no indication as to when (or if) he was released from custody, however
the Court will assume that such release occurred the same day.
Claimant’s moving papers indicate that the Notice of Intention was
erroneously filed with the Chief Clerk of the Court of
, but was never served on the Office of
the Attorney General. Additionally, no claim was served upon the Office of the
Attorney General within ninety (90) days of the date of accrual alleged. Court
of Claims Act §§10(3), (3-b). Nominally, the only remedy available to
this Claimant is seeking permission to serve and file a late claim in accordance
with Court of Claims Act §10(6). There is no application to serve and file
a “late Notice of Intention” in Court of Claims practice.
Accordingly Claimant’s application has been treated as one for permission
to serve and file a late claim: a common practice when a request to serve a late
notice of intention is made by litigants more familiar with practice under
general municipal law. Claimant has addressed the factors analyzed when seeking
such permission in any event.
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 Court of Claims Act §10(6). 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
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
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 with regard to the
negligence based causes of action raised is three (3) years, and the statute of
limitations with regard to intentional acts is one (1) year, thus the motion is
Court of Claims Act § §10(3) and 10(3-b); Civil
Practice Law and Rules §§ 214(5); 215. A proposed claim must be
submitted with the motion for permission to serve and file a late claim. Court
of Claims Act §10(6). No proposed claim has been submitted with the
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.
No valid excuse for failing to timely serve and file the claim is offered
beyond law office failure to mail the Notice of Intention to File a Claim to the
Attorney General. [See Affirmation in Support by Alfred C. Laub,
¶¶ 4 and 5; Affidavit of Regina Brown].
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. Based upon the asserted date of accrual of May 27, 2006, the time period
has been brief, and this motion practice readily provides adequate notice to the
State, allowing more thorough investigation. 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
As noted, Claimant need not establish his claim prima facie, but rather show
the appearance of merit. If the allegations in the Notice of Intention to File
a Claim are accepted as true for the purposes of the motion, Claimant has made
the minimal showing of merit in order to permit late filing of a claim, at least
with respect to those causes of action justiciable in this Court, and as to
those causes of action that have actually accrued, if the pleading contained all
the elements required. Thus a proper application to file and serve a late claim
alleging false arrest, false imprisonment, “personal injuries”,
assault and battery might be granted. Because no adequate proposed claim is
appended, however, containing sufficient information that would allow the
Defendant to respond with a meaningful Answer
the motion herein must be denied without prejudice on that ground alone.
In the Notice of Motion filed by Counsel for the Claimant, the causes of action
Claimant intends to assert are false arrest, false imprisonment, malicious
prosecution, intentional infliction of emotional distress, personal injuries,
assault, battery, negligent supervision, violation of claimant’s rights
under the 4th, 8th, and 14th Amendments of the Constitution and violation of
claimant’s rights under 42 USC §1983 and related statutes. The
Notice of Intention includes these asserted causes of action under the
“nature of the claim” section, and adds negligent infliction of
emotional distress as well.
The State cannot be held liable for the intentional infliction of emotional
harm. The State is an entity, incapable of forming the requisite intent.
Furthermore, “. . . public policy prohibits a claim for intentional
infliction of emotional distress from being brought against the State . . .
(citation omitted),” De Lesline v State of New York, 91 AD2d
785, 786 (3d Dept 1982); and the State is not subject to punitive damages.
Sharapata v Town of Islip, 56 NY2d 332, 334 (1982); Wheeler v State of
New York, 104 AD2d 496, 498 (2d Dept 1984). Accordingly, the aspect of a
claim attempting to assert intentional infliction of emotional distress does not
state a viable cause of action, and would not be justiciable in this Court.
Without alleging any facts concerning a “direct injury”, any cause
of action for negligent infliction of emotional distress - notably not even
included in the notice of intention but seemingly added as an afterthought to
the notice of motion - would likely not lie either. See generally
Lauer v City of New York, 95 NY2d 95 (2000); Kennedy v McKesson
Co., 58 NY2d 500 (1983); Johnson v State of New York, 37 NY2d 378
With respect to the alleged constitutional violations, judging by the context,
what appears to be asserted are purported violations of the United States
Constitution, also not heard in this Court. Purported violations of the federal
constitution may not be maintained in the Court of Claims and should be pursued
pursuant to 42 USC §1983. No cause of action against the State of New York
exists for alleged violations of an individual’s rights under the United
States Constitution [See Lyles v State of New York, 2 AD3d 694 (2d
Dept 2003) affd 3 NY3d 396 (2004); Welch v State of New York, 286
AD2d 496, 498 (2d Dept 2001); Zagarella v State of New York, 149 AD2d 503
(2d Dept 1989); Davis v State of New York, 124 AD2d 420, 423 (3d Dept
1986)], in that the State is not a “person” amenable to suit
pursuant to 42 USC §1983. It is axiomatic that individuals cannot be sued
in the Court of Claims, [See Court of Claims Act §9], thus naming
the State Police Officers or other individuals does not somehow render the State
amenable to suit for alleged federal constitutional violations.
Additionally, no cognizable constitutional tort claim under the New York State
Constitution is made out here, especially in light of Claimant’s assertion
that his claim is brought pursuant to 42 USC §1983. See Brown v
State of New York, 89 NY2d 172 (1996). To determine whether a cause of
action for a State constitutional tort is properly brought in the Court of
Claims the Court must consider whether: (1) the applicable constitutional
provision is self-executing; (2) monetary damage remedies further the purpose of
the underlying constitutional provisions and necessarily assure its
effectiveness; (3) the provisions are such that they impose a clearly defined
duty on the State officers and/or employees; (4) declaratory and injunctive
relief is inadequate; and (5) money damages necessarily deter governmental
conduct and make the claimant whole.
In New York, constitutional provisions are presumptively self-executing.
Brown v State of New York
at 186. Violation of every
self-executing provision will not always support a claim for damages however.
Only where it is necessary to ensure the effectiveness and promote the purposes
of the allegedly violated provision will a constitutional tort remedy be
implied. Brown v State of New York
at 191. Here, the Court
is not convinced that any monetary recovery would further the purpose of the
underlying constitutional provisions and make Claimant whole. Indeed, relief
available through alternative proceedings, including appeal of the criminal
proceeding, and properly asserted causes of action for false arrest and
imprisonment, or malicious prosecution if and when a malicious prosecution cause
of action accrues,
could provide this Claimant
with an adequate remedy. Bullard v State of New York
, 307 AD2d 676, 678
(3d Dept 2003); See Droz v State of New York
, UID #2006-028-533,
Claim No. 108142, Motion No. M-70955 (March 21, 2006, Sise, P. J.).
Finally, no facts are asserted herein from which a negligent supervision or
other related cause of action is made out. Riviello v Waldron, 47 NY2d
297, 302 (1979); Jones v State of New York, 33 NY2d 275, 279
Accordingly, Claimant’s motion for permission to serve and file a late
notice of intention to file a claim is denied without prejudice to the
Claimant’s bringing a timely motion for permission to serve and file a
late claim attaching a proposed claim containing separately stated and numbered
causes of action justiciable in this Court that have actually accrued.