Defendant moves this Court for an order pursuant to CPLR 3211(a) to dismiss
claimant’s action for failure to comply with Court of Claims Act §
11(a). Claimant does not oppose this motion, but moves for leave to file a late
On April 21, 2005, claimant served a
notice of intention to file a claim upon the Office of the Attorney General via
ordinary mail. Thereafter, on February 23, 2006, claimant served a claim upon
the Office of the Attorney General, again, via ordinary mail. In his claim,
claimant alleges negligence and false imprisonment. Specifically, claimant
alleges that on March 3, 2005, while he was an inmate at Franklin Correctional
Facility, a correction officer conducted a search of claimant’s cell and
discovered certain legal materials. The correction officer submitted a
misbehavior report charging claimant with providing unauthorized legal
assistance to another inmate. Claimant states that, as a result, he was placed
in "solitary confinement". Disciplinary hearings regarding the misbehavior
report began on March 9, 2005 and were concluded on March 17, 2005. Thereafter,
claimant was found guilty of providing unauthorized legal assistance.
Claimant‛s rambling submissions do not indicate that his guilty
determination was reversed or that he exhausted his administrative remedies.
After defendant moved to dismiss, claimant moved for leave to file a late claim.
To effect proper service, claimant must serve the notice of intention and the
claim on the Attorney General either personally or by certified mail, return
receipt requested (Court of Claims Act § 11[a]). It is well settled that
service by ordinary mail, rather than certified mail, return receipt requested,
is insufficient to acquire personal jurisdiction over the State of New York in
an action in the Court of Claims (see Govan v State of New York,
301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 ;
Turley v State of New York, 279 AD2d 819 [3d Dept 2001], lv denied
96 NY2d 708 ). The claim, and envelope in which the claim was mailed, and
the notice of intention, and envelope in which the notice was mailed,
demonstrate that the documents were served by ordinary mail. Thus, claimant has
failed to comply with the jurisdictional requirements of Court of Claims Act
§ 11. Accordingly, defendant’s motion M-71474 is granted, and the
claim is dismissed.
With regard to claimant’s motion for leave to file a late claim, claimant
failed to attach a proposed claim to his moving papers as required by Court of
Claims Act § 10 (6) (see Davis v State of New York, 28 AD2d
609, 610 [addressing former section 10 (5)]; see also
Walach v State of New York, 91 Misc 2d 167, 169  affd 69
AD2d 1015 ). Thus, claimant‛s application should be denied because
it is procedurally defective.
Even if the Court considered the claim originally filed in the context of this
late claim application, the Court would deny late claim relief. On a late claim
application, the Court must consider six statutory factors conducting its
analysis. The six factors are: (1) whether defendant had notice of the essential
facts constituting the claim; (2) whether defendant had an opportunity to
investigate the circumstances underlying the claim; (3) whether the failure to
timely file and serve would result in substantial prejudice to defendant if the
motion is granted; (4) whether claimant has another available remedy; (5)
whether the delay in filing the claim was excusable; and (6) whether the claim
appears to be meritorious (Court of Claims Act § 10). The sixth factor
is generally the most decisive one, for it is futile to proceed with a meritless
The factors of notice, opportunity to investigate, and prejudice are considered
together. It appears that defendant had notice of the essential facts
constituting the claim because a number of correction officers witnessed the
incident, a misbehavior report was issued, and a disciplinary hearing was held.
Moreover, claimant served, although improperly, a notice of intention to file a
claim on the Attorney General’s Office within a month of the alleged
“unlawful imprisonment.” Defendant also had an opportunity to
conduct an investigation into the circumstances leading to the purported
“unlawful imprisonment”, and apparently did so in preparation for
the disciplinary hearing on the matter. Thus, defendant is not prejudiced by
claimant’s late filing. Accordingly, these factors weigh in
claimant’s favor. Next, claimant does not have another remedy for seeking
monetary damages against the State of New York (Correction Law § 24)
and, therefore, this factor weighs in claimant’s favor.
Regarding the fifth factor of whether the delay in filing was excusable, it is
generally said that ignorance of the law is no excuse (see Matter of
Galvin v State of New York, 176 AD2d 1185 [3d Dept 1991], lv denied
79 NY2d 753 ). Additionally, claimant is charged with the notice
requirements of the Act, pursuant to which he is seeking a remedy (see
Simpson by Buck v State of New York, 96 AD2d 646 [3d Dept 1983]). As a
result, claimant’s lack of awareness of the filing period is unpersuasive.
Furthermore, incarceration is generally not a reasonable excuse. Accordingly,
the fifth factor weighs in favor of defendant.
Lastly, the Court turns to the most important factor in the analysis, the merit
of the claim. It is well settled that “in order for a claim to
‘appear to be meritorious’: (1) it must not be patently groundless,
frivolous, or legally defective, and (2) the court must find, upon a
consideration of the entire record, including the proposed claim and any
affidavits or exhibits, 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, 11 [Ct Cl 1977]). Generally, actions of correctional
facility employees with respect to inmate discipline matters are quasi-judicial
in nature; therefore, unless the employees exceed the scope of their authority
or violate the governing statutes and regulations, the State has absolute
immunity for those actions (see Arteaga v State of New York, 72
NY2d 212, 214 ; see Holloway v State of New York, 285 AD2d
765, 765-766 [3 Dept 2001]).
Claimant‛s conclusory allegation that his guilty determination resulted
from an "erroneous disposition" is insufficient to demonstrate that correction
employees exceeded their authority or violated statutes or regulations in
imposing a sanction on claimant after conducting a hearing on the misbehavior
report. Claimant also argues that his actions were allowable under Department
Directive 4422. He fails, however, to provide the Court with this directive.
Thus, given that the conduct complained of by claimant is immune from liability
and his allegations fail to support any other actionable conduct, he has failed
to demonstrate that his claim has the appearance of merit.
After balancing the requisite factors, the Court concludes that, even if
claimant‛s application was not procedurally defective, he would not be
entitled to leave to file a late claim.
Accordingly, defendant‛s motion M-71474 is granted and claimant‛s
motion M-71475 is denied.