New York State Court of Claims

New York State Court of Claims

STUBBS v. THE STATE OF NEW YORK, #2007-028-585, Claim No. NONE, Motion No. M-73934


Motion for permission to late file is granted only with respect to two causes of action alleging direct physical injury. Movant failed to submit an affidavit to establish that the cause of action alleging medical malpractice had apparent merit. Motion is also denied with respect to causes of action for infliction of mental distress, constitutional torts, and improper commencement of prison disciplinary hearings.

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:
Defendant’s attorney:
BY: Saul Aronson, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 28, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Movant’s motion for permission to file an untimely claim:

1. Notice of Motion of Donald E. Stubbs, pro se; and

2. Affirmation in Opposition of Saul Aronson, AAG.

Movant’s proposed Claim alleges that on April 29, 2007, the correction officer in charge of the facility law library at Coxsackie Correctional Facility refused, for no reason, to allow him to make photocopies of some papers. In addition, he asserts, the officer spat in his face and verbally assaulted him. The State is liable, he maintains, because correction officials were aware of this officer’s abusive and unprofessional tendencies. Movant promptly made several complaints about this incident and attempted to obtain medical treatment to determine if he had been exposed to a disease because the sputum struck his face. Although he was seen by the facility nurse, who gave him two non-aspirin pills and said that she would inform the physician of the event, there was no further attention or treatment given to him.

This motion was instituted less than a year after the claim accrued, within both the CPLR, Article 2 one year statute of limitations applicable to intentional torts and the three year statute of limitations applicable to actions based on negligence. Consequently, this application is timely.

Section 10(6) contains the following non-exclusive list of factors to be considered in determining a motion for permission to late file. The Court must consider whether:

1. the delay in filing the claim was excusable;

2. the State had notice of the essential facts constituting the claim;

3. the State had an opportunity to investigate the circumstances underlying the claim;

4. the claim appears to be meritorious;

5. the failure to commence a timely action resulted in substantial prejudice to the State; and

6. the movant has any other available remedy.

The Court in the exercise of its discretion balances these factors. As a general proposition, the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]), and the Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]).

Movant states that he was unable to comply with the time limitations for commencing an action against the State because he was “denied access to legal material from the law library . . . until claimant’s written complaints on the matter were finally acknowledged by the Inmate Grievance Resolution Committee (IGRC)” (Stubbs Notice of Motion, ¶ 2). He does not give the date on which this “acknowledgment” occurred. Inaction or ignorance of the requirements for commencing such an action does not provide an acceptable excuse for failing to comply with the time limitations of Court of Claims Act §10 (see e.g. Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977]; Sevillia v State of New York, 91 AD2d 792 [3d Dept 1982]; Spickerman v State of New York, 85 AD2d 60, 61 [3d Dept 1982]). If movant was truly denied access to legal materials, that could provide a legitimate excuse for such inaction, but it would require something more than his bald assertion for the Court to accept that that was the case. In any event, as noted, he does not indicate how long such prohibition continued.

With respect to the State’s notice of the underlying facts and its opportunity to conduct a timely investigation, movant states that his written grievance report, filed within 24 hours of the incident, provided such notice. Although this gives notice of the facts and movant’s dissatisfaction, there was nothing to indicate that there was pending litigation. It has frequently been held that the statute’s reference to “notice of the essential facts constituting the claim” to mean that the State should have been aware not only of the facts themselves but also that litigation was planned or at least contemplated by the movant (Block v New York State Thruway Auth., 69 AD2d 930; Rizzo v State of New York, 2 Misc 3d 829 [Ct Cl 2003]; Wright v State of New York, 195 Misc 2d 597, 603 [Ct Cl 2003]; Willetts v State of New York, UID #2007-015-165, Motion No. M-72726 [Ct Cl, March 30, 2007], Collins, J.; Pucci v State of New York, UID #2004-032-032, Motion No. M-67980 [Ct Cl, June 1, 2004], Hard, J.; Quackenbush v State of New York, UID #2002-013-038, Motion No. M-65414 [Ct Cl, Dec. 19, 2002], Patti, J.; Barrett v State of New York, UID #2000-001-036, Motion No. M-60959 [Ct Cl, June 30, 2000] Read, P.J.). While certain types of events or grievances, particularly within a prison, will by their very nature lead to extensive and thorough investigation whether or not the State is aware that legal action is contemplated (see e.g. Espinal v State of New York, 159 Misc 2d 1051, 1057 [Ct Cl 1993] [a prison assault that results in serious injury "gives notice of the injury and both opportunity and motivation for the State to investigate the underlying facts"]), such is not always the case when an inmate files a grievance (Cabrera v State of New York, UID #2004-019-595, Motion No. M-69141 [Ct Cl, Nov. 22, 2004], Lebous. J.). Nevertheless, the fact that there was some level of investigation made in connection with movant’s grievances reduces to an extent the prejudice that would affect defendant if the requested relief is granted.

To succeed in establishing the threshold appearance of merit for purposes of a late claim motion, a party need only establish that the proposed claim is not patently groundless, frivolous, or legally defective and 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 [Ct Cl 1977]). Furthermore, “[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits" (Sessa v State of New York, 88 Misc 2d 454, 458 [Ct Cl 1976], affd 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 [1979]), see also Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]).

Movant alleges that he is entitled to money damages based on the following alleged injuries: 1) physical injury, pain and suffering to his right eye; 2) physical injury to his mouth, gums and tongue; 3) emotional and psychological damages; 4) “negligent medical attention”; 5) cruel and unusual punishment; 6) denial of access to court; 7) mental anguish and stress; 8) negligence on the part of the State based on the known behavior of this correction officer (negligent retention); and 8) wrongful keep-lock based on the officer’s writing a false misbehavior report.

Most of these causes of actions cannot support a claim for money damages in this Court. The institution and adjudication of prison disciplinary proceedings (No. 8) is protected by absolute immunity, as long as the disciplinary proceeding was conducted in accordance with the rules and procedures established by the Department of Correctional Services (hereinafter “DOCS”) (Arteaga v State of New York, 72 NY2d 212 [1988]; Davis v State of New York, 262 AD2d 887 [3d Dept 1999], lv denied 93 NY2d 819 [1999]). Public policy prevents the assertion of a cause of action for intentional infliction of emotional distress (Nos. 3, 7) against the State of New York where the complained-of act constitutes official conduct (Brown v State of New York, 125 AD2d 750 [3d Dept 1986]; Wheeler v State of New York, 104 AD2d 496, 498 [2d Dept 1984]; De Lesline v State of New York, 91 AD2d 785, 786 [3d Dept 1982]; Van Buskirk v Bleiler, 46 AD2d 707 [3d Dept 1974]), and while recovery for the negligent infliction of emotional distress is possible, it is permitted only in extremely unusual situations in which the emotional injury is a direct, rather than a consequential, result of an official's negligent act (Kennedy v McKesson Co., 58 NY2d 500, 506 [1983]) or where special circumstances exist that created “an especial likelihood of genuine and serious mental distress, arising from the special circumstances, which serves as a guarantee that the claim is not spurious" (Johnson v State of New York, 37 NY2d 378, 382, quoted in Lauer v City of New York, 95 NY2d 95, 114 [2000]; see also Dobisky v Rand, 248 AD2d 903, 905 [3d Dept 1998]).

Civil actions seeking to enforce rights created by the United States Constitution (Nos. 5, 6) are governed by 42 USC § 1983, and the State of New York is not a "person" ammenable to suit under this statute (Will v Michigan Dept. of State Police, 491 US 58 [1989]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]), and tort actions arising from alleged violation of the New York State Constitution may be maintained only when, among other things, the injured party has no common law or statutory remedy available (see Brown v State of New York, 89 NY2d 172 [1996]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]; Remley v State of New York, 174 Misc 2d 523, 526 [Ct Cl 1997]).

A cause of action alleging negligent medical treatment (No. 4) may be maintained, however, and typically a claim for medical negligence, as opposed to one based on allegations of medical malpractice, does not require an expert affidavit to be submitted in connection with the application to late file. The allegations here, relate, not to matters that can readily be comprehended by laypersons but, rather, to a purported failure of the medical staff to properly test, diagnose and treat. Consequently, the cause of action set forth in the proposed claim is actually one for medical malpractice. To support movant’s contention that correction medical staff should have taken additional steps to treat movant following this incident, an expert’s affidavit would be required (see e.g. Matter of Perez v State of New York, 293 AD2d 918 [3d Dept 2002]; Coursen v New York Hospital-Cornell Med. Center, 114 AD2d 254, 256 [1st Dept 1986]). Consequently, it is only with respect to the first two causes of action – both of which allege specific physical harm resulting from the correction officer’s spitting on movant – that there is reasonable cause to believe that a valid cause of action exists.

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting movant's motion for permission to file a late claim only to the extent that the proposed claim alleges the two causes of action alleging physical injury (sections A and B on the fourth page of the proposed claim).[1] Accordingly, the application for permission to late file a claim is DENIED in part and GRANTED in part. Movant is directed to file and serve a claim setting forth only those two causes of action and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within thirty (30) days of the date this Decision and Order is filed.

December 28, 2007
Albany, New York

Judge of the Court of Claims

[1]. Movant is also reminded that pleadings are to “consist of plain and concise statements in consecutively numbered paragraphs” with each paragraph containing a single allegation “as far as practicable” (CPLR 3014).