New York State Court of Claims

New York State Court of Claims

PITT v. THE STATE OF NEW YORK, #2007-009-029, Claim No. NONE, Motion No. M-73213


Claimant’s motion for permission to serve and file a late claim (assault by a correction officer) was granted. Claimant’s application for poor person relief and the assignment of counsel was denied.

Case Information

1 1.The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General
BY: Thomas M. Trace, Esq.,
Senior AttorneyOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 27, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim. Claimant has also brought this motion seeking poor person relief and the assignment of counsel to represent him in this claim.

The following papers were considered by the Court in connection with this motion:
“Motion for Permission to File a Late Claim”[2], Proposed Claim 1,2

Application for Appointment of Counsel 3

“Response to Motion to File a Late Claim”, with Exhibits 4

In his proposed claim, claimant seeks damages stemming from an alleged assault against him by a correction officer at Marcy Correctional Facility, where he was then incarcerated. This assault allegedly occurred on December 19, 2006.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth 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 file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117), and the presence or absence of any particular factor is not dispositive of any such application (Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979).

With regard to excuse, claimant asserts that he is a mental patient, not a lawyer, that he did not have access to the prison law library, and he was not aware that he had the right to institute a claim based upon the alleged incident. However, the mere fact that claimant was incarcerated at the time of this incident does not constitute a reasonable excuse for the failure to timely serve and file his claim (Plate v State of New York, 92 Misc 2d 1033). Rather, there must be some showing that the circumstances of his incarceration prevented claimant from taking effective steps to perfect his claim, or to contact an attorney (Bommarito v State of New York, 35 AD2d 458). Furthermore, claimant’s perceived lack of knowledge of the law, and his inability to retain or consult with an attorney, do not constitute acceptable excuses (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654; Musto v State of New York, 156 AD2d 962). Claimant, therefore, has failed to establish an acceptable excuse for his failure to timely serve and file a claim herein.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. Defendant contends that the Attorney General’s Office did not receive actual notice of this incident until service of the within motion on March 26, 2007, and therefore defendant did not have the ability to conduct any immediate investigation into the circumstances surrounding the allegations of this claim. The Court notes, however, that since this incident allegedly occurred on December 19, 2006, defendant received actual notice of the circumstances of this claim within 97 days after the alleged incident. Therefore, even though claimant has not established that the defendant had either actual notice of the essential facts or an opportunity to investigate the circumstances surrounding this claim within 90 days of its alleged occurrence, defendant will not be substantially prejudiced should it have to defend this claim. The personal recollection of the individuals involved, and the credibility of such witnesses, should not be significantly impaired as a result the short delay on claimant’s part in bringing this application.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).

In his proposed claim, claimant alleges that he was assaulted by one Sergeant Gardner at Marcy Correctional Facility on December 19, 2006. In response, defendant has submitted a memorandum from Sergeant Gardner (Exhibit C to Item 4), in which he flatly denies physically or verbally assaulting claimant.

Although Sergeant Gardner strenuously denies[3] the allegations which form the basis of this claim, claimant is not required to establish a prima facie case for purposes of a late claim application under § 10(6), but must only show that his claim has the appearance of merit (Santana v New York State Thruway Auth., supra). Accordingly, based upon the contentions set forth by claimant in this application, and in spite of the denial from Sergeant Gardner, the Court finds that claimant has made a sufficient showing of merit for purposes of this application.

It does not appear that claimant has any other available remedy.

Accordingly, after a review of the papers submitted herein, and after weighing and considering all of the factors set forth under Court of Claims Act §10(6), it is the opinion of this Court that claimant should be allowed to serve and file his proposed claim.

Additionally, claimant also seeks an order permitting him to proceed as a poor person, as well as for the appointment of an attorney to represent him in this claim.

When claimant files his claim, as authorized in this decision and order, he may also request a reduction of the filing fee for this claim at that time. Since there are no other costs in this Court, the only other relief available under CPLR § 1102 that claimant can be seeking at this time is the assignment of an attorney, who would serve without compensation. The decision to assign counsel is a matter of judicial discretion, and such an assignment is not an absolute right in civil litigation (Matter of Smiley, 36 NY2d 433). The allegations made in this claim establish to the satisfaction of the Court that this is the type of claim that would typically be handled by an attorney on a contingent fee basis. This case does not present the possibility of a “grievous forfeiture or loss of a fundamental right” (Morgenthau v Garcia, 148 Misc 2d 900, 903), and therefore does not justify the assignment of counsel, without compensation, to represent claimant in this claim (Wills v City of Troy, 258 AD2d 849; Matter of Smiley, supra).

Accordingly, it is

ORDERED, that Motion No. M-73213 is hereby GRANTED, in part, and claimant is directed to file and serve his proposed claim, properly verified, within 45 days from the date of filing of this decision and order in the Clerk’s office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims; and it is further

ORDERED, that the aspect of claimant’s motion seeking poor person relief is hereby DENIED.

September 27, 2007
Syracuse, New York

Judge of the Court of Claims

[2]. Although claimant failed to include a notice of motion with this application, a potentially fatal defect on any motion, this Court, in the interest of judicial economy, has nevertheless addressed the merits of this application.
[3]. Even though the decision herein would not be different, the Court notes that the denial from Sergeant Gardner is in “Memorandum” form, and not by means of a sworn affidavit.