New York State Court of Claims

New York State Court of Claims

DOE v. STATE OF NEW YORK, #2006-040-001, , Motion No. M-72310


Synopsis


Motion to late file granted.

Case Information

UID:
2006-040-001
Claimant(s):
JOHN DOE
1 1.Because this proposed claim involves a victim of a sexual offense, the caption has been amended to give the Movant a fictitious name in order to protect his identity. The Chief Clerk is directed to seal the file in Motion No. M-72310 pursuant to Civil Rights Law § 50-b (see, Civil Rights Law §§ 50-b [1], 50-c [private right of action for wrongful disclosure of victim of sexual offense]).
Claimant short name:
DOE
Footnote (claimant name) :
Because this proposed claim involves a victim of a sexual offense, the caption has been amended to give the Movant a fictitious name in order to protect his identity. The Chief Clerk is directed to seal the file in Motion No. M-72310 pursuant to Civil Rights Law § 50-b (see, Civil Rights Law §§ 50-b [1], 50-c [private right of action for wrongful disclosure of victim of sexual offense]).
Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-72310
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
ELLIOT IFRAIMOFF & ASSOCIATES, P.C.By: Julio Cesar Roman, Esq.
Defendant’s attorney:
ELIOT SPITZER
Attorney General of the State of New YorkBy: Frederick H. McGown, III, Esq., AAG
Third-party defendant’s attorney:

Signature date:
November 2, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, Movant’s application to serve and file a late claim pursuant to Subdivision 6 of Section 10 of the Court of Claims Act is granted.


The motion papers assert that Movant was an inmate at Wallkill Correctional Facility (“Wallkill”) during the period from November 29, 2004 through April 2005 where he was sexually assaulted by a male nurse employed at Wallkill. It is alleged that the Defendant was negligent in the hiring, training, supervision and control of the nurse.

In determining whether to grant a motion to file a late claim, Subdivision 6 of Section 10 of the Court of Claims Act sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033). The Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979). However, the burden rests with Movant to persuade the Court to grant his late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

The first factor to be considered is whether the delay in filing the claim was excusable. Movant asserts as an excuse for his failure to file a timely claim that his psychological health was poor and he was suffering from a learning disability. Movant is currently under the care of a psychiatrist who asserts that Movant has been suffering from schizoaffective disorder and post traumatic stress disorder for a period of time prior to his release from prison on July 14, 2005 (see Exhibit A, Affirmation of Jeffrey Fishberger, MD, attached to motion). That condition, however, did not prevent him from 1) sending a letter to the Department of Correctional Services Inspector General in February 2005 regarding the alleged sexual assault, or 2) serving a notice of intention to file a claim upon the Attorney General on March 4, 2005.[2] The Court does not accept the proffered excuse as reasonable under the circumstances (cf. Conroy v State of New York, 192 Misc 2d 71).

The next three factors to be addressed – whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant – are interrelated and will be considered together. The State neither claims lack of notice, nor lack of opportunity to investigate, nor that it will be prejudiced substantially by a delay in filing a claim in this matter. The State cannot use its silence as a shield against an allegation that it had notice of the essential facts constituting the claim (Cole v State of New York, 64 AD2d 1023). These factors weigh in Movant’s favor.

The fifth factor to be assessed is whether Movant has any other available remedy. In this case, Movant has no alternate remedy at this point, since the statute of limitations for an assault action against the nurse appears to have expired.

The sixth, final and perhaps most important factor to be considered is whether the claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729; Rosenhack v State of New York, 112 Misc 2d 967; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438). It is Movant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

At this stage of the proceedings, it should be noted, the Court generally takes as true the factual allegations of a movant. Based upon the entire record, the Court finds that the causes of action have the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant’s favor. The mix of circumstances presented by this case fall well within the remedial purposes of the amendment to the Court of Claims Act enacted in 1976 (Chapter 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicating a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988; Plate v State of New York, 92 Misc 2d 1033). Movant has provided ample basis for a favorable exercise of this Court’s discretion to grant him leave to file a late claim against the State. Therefore, within forty-five (45) days of the date of filing of this decision and order, Movant shall file his proposed claim against the State with the Clerk of the Court and serve, by certified mail, return receipt requested, a copy of said proposed claim, properly verified, upon the Attorney General. In serving and filing his claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a regarding the filing fee, and the Uniform Rules for the Court of Claims. Once the claim is filed, the Chief Clerk is directed to seal the file pursuant to Civil Rights Law § 50-b (see, Civil Rights Law §§ 50-b [1], 50-c [private right of action for wrongful disclosure of victim of sexual offense]).






November 2, 2006
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered on Movant’s request for permission to serve and file late claim pursuant to Court of Claims Act Section 10, Subdivision 6:

Papers Numbered


Notice of Motion, Affirmation in Support
and Exhibits Attached 1


Affirmation in Opposition and Exhibit
  1. attached 2



[2]. The notice of intention (part of Exhibit D attached to motion) was prepared by Mr. Doe, pro se, and states that he was sexually assaulted after he was returned to Walkill from Westchester Medical Center on November 29, 2004. The document does not allege improper hiring, training and supervision of the nurse. Hence, the need for this motion.