Alphonso Simmons alleges in his proposed claim that when he arrived at
Downstate Correctional Facility reception on September 29, 2006, during the
intake procedure, he was ordered to cut his hair and shave his beard. When he
refused because he “had a Court Order not to cut . . . [his] hair or shave
. . . [his] beard,” correction officers surrounded him, and told him that
he would be locked up if his hair was not cut. Claimant states he spoke with
Officer Ekwerekwu and Sergeant Turso, who claimed to have spoken with the Watch
Commander, and was told that it was a “security issue.” Although the
claim does not state it, presumably his beard was shaved and his hair was cut.
No explanation about or copy of the court order he refers to is given in the
claim, except that in an additional submission with the present motion, a Notice
of Intention to file a claim, it is indicated that the nature of his claim is
“violation of court order not to cut claimant’s . . . hair and/or
beard because of religious reasons.” [Notice of Intention].
In order to determine an application for permission to serve and file a late
claim, the Court must consider, “among other factors,” the six
factors set forth in §10(6) of the Court of Claims Act. The factors stated
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 serve upon the Attorney General a
claim or notice of intention to file a claim, and the failure to timely file the
claim with the Court of Claims; and (6) whether any other remedy is
The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim. See
e.g. Matter of Gavigan v State of New York
, 176 AD2d 1117, 1118 (3d
Dept 1991). The presence or absence of any particular factor is not dispositive
Bay Terrace Coop. Section IV, Inc. v New York State Employees’
Retirement System Policemen’s & Firemen’s Retirement System
55 NY2d 979, 981 (1982); Broncati v State of New York
, 288 AD2d 172 (2d
Additionally, the motion must be timely brought in order to allow that a late
claim be filed “. . . 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 . . . ” Court of Claims Act §
10(6). Here, the applicable statute of limitations is either one (1) year if
the cause of action asserted is one for intentional tort, or three (3) years
if a constitutional tort cause of action is what is alleged. Civil Practice Law
and Rules §214.
Claimant states that the delay in filing the claim is excusable because he is
“not a lawyer and . . . had no access to professional legal counsel or to
the prison law library during the statutory perio[d]s for filing because . . .
[he] was and still . . . [is] on Transit status and there is limited access to
the law library.” [Motion for Permission to File a Late Claim, ¶2].
He also indicates that because he notified Officer Ekwerekwu and Sergeant Turso,
“both who participated in the initial investigation and reported their
findings to the Watch Commander” the State, therefore, had notice.
[Ibid. ¶ 3]. Finally, he states that he has no other available
remedy, due to the State’s violation of his “first amendment right
and the Court order no[t] to cut . . . [his] hair or beard.” [Ibid.
A claim appears to be "meritorious" within the meaning of the statute if it is
not patently groundless, frivolous or legally defective and a consideration of
the entire record indicates 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). Claimant need not establish a prima facie
case at this point, but rather the appearance of merit.
His mere incarceration, and movement within the system, and the asserted
difficulty in obtaining representation by counsel or otherwise conferring with
counsel, does not constitute a reasonable excuse, nor does his asserted lack of
knowledge of the law. Innis v State of New York, 92 AD2d 606 (2d Dept
1983), affd 60 NY2d 654 (1983); Musto v State of New York, 156
AD2d 962 (4th Dept 1989). There must be some showing that the circumstances of
his incarceration prevented claimant from taking effective steps to perfect his
claim, or contact an attorney. Bommarito v State of New York, 35 AD2d
458, 459 (4th Dept 1971). Claimant has made no such showing, thus this factor
weighs against him.
The absence of an excuse, however, is but one of the factors to be considered,
and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc.
v New York State Employees’ Retirement System Policemen’s &
Firemen’s Retirement System, supra.
The closely related factors of notice, opportunity to investigate and prejudice
to the State, considered together, might weigh toward granting Claimant’s
motion, except that the existence of any documentation is entirely refuted in
Defendant’s opposition to the motion, and is not otherwise established by
Claimant’s moving papers. Thus although the passage of time has not been
so great that the State’s ability to investigate is impeded to its
prejudice, it is clear that some investigation has been had, revealing only that
there is absolutely no record of the claimed incident. Accordingly, these
factors weigh against granting the motion.
As noted, Claimant need not establish his claim prima facie, but rather show
the appearance of merit. Although claimant refers to a court order apparently
directing that claimant not have his hair cut or his beard shaved, he does not
supply either a copy of the order or indicate what court directed same.
Additionally, Sergeant Civitella, the supervising officer in the draft
processing area at Downstate on September 29, 2006, indicates that he has no
recollection of any inmate refusing the initial haircut that day, nor does he
recall that any officer informed him that an inmate was refusing a haircut based
upon a court order. [Affirmation by Dewey Lee, Assistant Attorney General,
attached Memorandum dated February 16, 2007 to the Watch Commander, from D.T.
Civitella]. Sergeant Civitella also expresses his awareness of New York State
Department of Correctional Services [DOCS] Directive 4914, regarding Inmate
Grooming Standards, which provides that inmates who refuse to comply with the
initial haircut regulation based on religious grounds and have a court order
restraining DOCS from enforcing the initial haircut regulation, cannot be forced
to comply. [Id.]. The sergeant avers that this would be the order
that is “followed and adhered to during the Draft process regarding the
initial haircut.” [Id.]. Other correction officers assigned to
the draft processing area on September 29, 2006 also indicate that they do not
recall any inmate refusing a haircut on that day. [Ibid. attached
Memoranda all dated February 16, 2007 to Sergeant Civitella, from C.O. E. Scott;
C.O. J. Meo; C.O. A. Martinez].
Based on the foregoing, claimant has not established the appearance of merit,
because he has failed to establish that his claim is not patently groundless,
frivolous or legally defective, and consideration of the entire record presented
indicates that there is no reasonable cause to believe that a valid cause of
action exists. Matter of Santana v New York State Thruway Auth,
Accordingly, and after careful consideration of all pertinent factors,
claimant’s motion for permission to serve and file a late claim [M-72704]
is in all respects denied.