New York State Court of Claims

New York State Court of Claims

COCHRAN v. THE STATE OF NEW YORK, #2006-037-021, Claim No. None, Motion No. M-71745


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):
Cross-motion number(s):

Claimant’s attorney:
Robert Cochran, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer
New York State Attorney General
By: Paul Volcy, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 2, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Pro se inmate brings this motion for permission to file a late claim pursuant to § 10 (6) of

the Court of Claims Act. The following were read and considered with respect to this motion:

1. Notice of motion filed May 19, 2006, and affidavit of pro se Movant, Robert

Cochran, sworn to May 3, 2006;[1]

2. Opposing affirmation of Assistant Attorney General Paul Volcy dated May 30, 2006,

with attached Exhibit A.

Movant, Robert Cochran, seeks permission to late file a claim “[f]or the verbal/physical assult [sic], humiliation and suffering [Movant] sustained because of the State’s negligence.” Although Movant’s motion papers refer to an “attached claim,” no proposed claim was included.

Court of Claims Act § 10 (6) grants the Court discretion to permit the late filing of a claim upon consideration of all relevant factors, including: whether the delay in filing the claim was excusable; whether the State had notice of the essential facts constituting the claim; whether the State had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the Attorney General a timely claim resulted in substantial prejudice to the State; and whether the Movant has any other available remedy.

Movant alleges that the delay in filing and serving a claim was excusable because he erroneously believed that he had to await the outcome of an investigation presumably undertaken at Gowanda Correctional Facility (Gowanda) where he was incarcerated, that he has limited knowledge of the law, and that he was precluded from seeking assistance from other inmates and that the few clerks available to assist inmates had a limited amount of time. Ignorance of the law and incarceration are not adequate excuses for failure to file and serve a claim within the statutory 90 day period; especially where there is no showing that the circumstances of Movant’s incarceration prevented him from perfecting his claim or conferring with counsel (Holland v State of New York, Ct Cl, September 18, 2003, Lack, J., Claim No. none, Motion No. M-66837, UID #2003-033-022;[2] Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]; Plate v State of New York, 92 Misc 2d 1033 [1978]).

The three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [1998]). Here, Movant alleges that the State had knowledge of the essential facts and an opportunity to investigate because medical personnel at Gowanda allegedly took photographs of Movant several days after the November 22, 2005 incident. The mere fact that photographs were subsequently taken, does not establish that anyone at Gowanda knew what had allegedly transpired on November 22, 2005, or knew that the Movant would eventually allege that the State was somehow negligent.

Merit is often considered the most decisive factor as it would be futile to allow a meritless claim to proceed (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1 [1977]). Other than a general statement that the State was negligent, Movant’s papers do not contain any specific allegations of wrongdoing on the part of the State and do not include a proposed claim containing all of the information set forth in § 11 of the Court of Claims Act as required of an application to late file a claim under § 10 (6) of the Court of Claims Act. Under these circumstances, the Court is precluded from making any meaningful review of the merit of this application, or from determining if Movant has any other available remedies.

Upon balancing all of the factors set forth in § 10 (6) of the Court of Claims Act, the Court concludes that none of these factors weigh in favor of Claimant’s application to file a late claim. Accordingly, it is hereby

ORDERED, that Movant’s motion M-71745 for permission to late file a claim is denied, without prejudice.[3]

August 2, 2006
Buffalo, New York

Judge of the Court of Claims

[1]. The affidavit accompanying the original notice of motion as filed was unsworn. The copy served on the Attorney General’s Office and attached to the opposing papers of Assistant Attorney General Paul Volcy was sworn to May 3, 2006. This motion was brought by Robert Cochran, DIN # 05-R-1845. According to the web site of the Department of Correctional Services (DOCS),, DIN # 05-R-1845 is assigned to inmate Jimmy Cochran. Attached to the Movant’s motion papers is a memorandum addressed to the Clerk of the Court of Claims enclosing the original motion papers. While this memorandum is signed by Robert Cochran, the notation in the upper left hand corner indicates that the memorandum was from Jimmy Cochran. The Court is satisfied that Robert Cochran and Jimmy Cochran are the same person.
[2]. This and other unreported Court of Claims decisions may be found on the Court’s web site at
[3]. The phrase “without prejudice” means that Movant is free to bring a subsequent motion for permission to file a late claim. If he chooses to do so, however, he should address all of the factors to be considered by the Court as set forth in § 10 (6) of the Court of Claims Act, and he must annex to his papers a proposed claim which is in compliance with § 11 of the Court of Claims Act.