New York State Court of Claims

New York State Court of Claims

BERIGUETE v. DEPARTMENT OF CORRECTIONS, #2006-041-003, , Motion No. M-72056


Synopsis


Inmate seeks to file late claim alleging intentional tort by a correction officer. The application is denied because the Court of Claims lacks subject matter jurisdiction over the claim, which arose in a county correctional facility.

Case Information

UID:
2006-041-003
Claimant(s):
PABLO BERIGUETE
1 1.As captioned in Mr. Beriguete’s Notice of Motion to file a late claim. The Attorney General appears on behalf of the State of New York.
Claimant short name:
BERIGUETE
Footnote (claimant name) :

Defendant(s):
DEPARTMENT OF CORRECTIONS
Footnote (defendant name) :
As captioned in Mr. Beriguete’s Notice of Motion to file a late claim. The Attorney General appears on behalf of the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-72056
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
Pablo BeriguetePro Se
Defendant’s attorney:
Hon. Eliot Spitzer, New York State Attorney GeneralBy: Lori L. Pack, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 12, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Pablo Beriguete (movant) moves for permission to file and serve a late claim. The application is denied.

The movant’s supporting affidavit states that the “proposed claim is for Intentional Tort, in which I was physically assaulted by three (3) officers in the employ of the department of Corrections.” Movant further alleges that “Officer Badge # 1095" struck him behind the ear but offers no other specific allegation of an assault by any correction officer other than “Officer Badge # 1095.”

Movant states that “Officer Badge # 1095" ordered other inmates to assault him, and that the officer then watched as the inmates beat movant in the head and neck area and broke his thumb.

Finally, movant asserts that “Officer # 1095, & 1154, would routinely humiliate and torment claimant while he was incarcerated in River head Correctional Facility.” The movant does not state in his affidavit when the acts complained of took place.

In opposition, the State provides a notice of intention to file claim in which movant alleges that on December 22, 2005, “a correction officer with the badge number 1095 ordered three other inmates to cause me physical harm.... This situation accured [sic] in the suffolk county correctional facility on floor 4 East north.” The notice of intention to file claim was received by the Attorney General on January 19, 2006 and set forth movant’s address as the Suffolk County Correctional Facility, 110 Center Drive, Riverhead, NY, 11901.

The notice of intention to file claim was served on the Attorney General by regular mail rather than by personal service or by certified mail, return receipt requested, as required by Court of Claims Act § 11(a)(i). A “notice of intention to file a claim which is improperly served is to be given no effect” and is thus insufficient to extend the time for filing and serving the claim (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]; see Edens v State of New York, 259 AD2d 729 [2d Dept 1999]; Govan v State of New York, 301 AD2d 757, 758 [3d Dept 2003], lv denied 99 NY2d 510 [2003]).

Movant states in his affidavit that he failed “to file a notice of claim within the prescribed time.” The applicable filing and service requirements are set forth in Court of Claims Act § 10(3-b):
“A claim to recover damages for injuries to property or for personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee, ..., shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim.”

Movant therefore seeks permission to file a late claim.

Pursuant to Court of Claims Act § 10(6) the Court, upon application and in its discretion, may permit the late filing and service of a claim “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.” The statute requires that the “claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application.”

In determining the application, Court of Claims Act § 10(6) provides that:
“[T]he court shall consider, among other factors, 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 or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy.”

Case law interpreting the statute instructs that “[i]n arriving at such a determination, the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10(6), no one factor being controlling” (Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]). In fact, “[n]othing in the statute makes the presence or absence of any one factor determinative” (Bay Terrace Co-op. Section IV, Inc. v New York State Employees’ Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).

Further, “it is well settled that the Court of Claims’ broad discretion in this area should be disturbed only in the face of clear abuse” (Calco, 165 AD2d at 119). Finally, denial of an application will not be disturbed “when the excuse offered for the delay is inadequate and the proposed claim is of questionable merit” (Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002]; see Brown v State of New York, 6 AD3d 756, 757 [3d Dept 2004]).

In the first instance, movant has failed to attach a copy of the proposed claim to his application. Even if the Court were to accept the movant’s supporting affidavit as a proposed claim the Court would still be unable to determine whether the application is timely under article two of the civil practice law and rules. The movant’s affidavit specifically alleges an intentional tort (assault) which is subject to a one year statute of limitations pursuant to article two of the civil practice law and rules (see CPLR § 215[3]). Movant has failed to set forth in his affidavit when the alleged assault took place, and the Court is therefore unable to determine when the claim accrued and when the statute of limitations would expire.

Assuming the movant’s application was timely under article two of the civil practice law and rules, based upon the December 22, 2005 accrual date set forth in the movant’s notice of intention to file claim, the Court nevertheless lacks subject matter jurisdiction over the proposed claim. The State asserts, and movant does not refute, that the correctional facility where the claim arose is “owned and operated by Suffolk County,” not the State of New York. Further, the notice of intention to file claim alleges that the tortious acts occurred at the “suffolk county correctional facility.”

With the exception of certain statutorily designated state authorities, the Court of Claims only has jurisdiction “to hear and determine a claim of any person, corporation or municipality against the state (emphasis added)” (Court of Claims Act § 9[2]; Hampton v State of New York, 168 Misc 2d 1036 [Ct Cl 1995]).

The Court lacks subject matter jurisdiction over a proposed claim against Suffolk County and when “the Court of Claims lacks subject matter jurisdiction, it is reversible error for the court to consider and grant a motion to file a late claim” (Taylor v State of New York, 160 Misc 2d 120, 122-123 [Ct Cl 1994]).

The application is denied.



September 12, 2006
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims



Papers Considered:
  1. Claimant’s (as captioned) Notice of Motion, filed July 19, 2006;
  2. Claimant’s (as captioned) Affidavit, sworn to July 3, 2006;
  3. Affirmation of Lori L. Pack, affirmed on August 14, 2006, with annexed exhibit.