New York State Court of Claims

New York State Court of Claims

SIMMONS v. THE STATE OF NEW YORK, #2007-030-531, Claim No. NONE, Motion No. M-72704


Synopsis


Late claim relief denied. No appearance of merit to pro se inmate’s proposed claim that he was ordered to cut his hair and shave his beard during intake procedure, in alleged violation of court order not to cut claimant’s hair for religious reasons. No explanation about or copy of the order provided

Case Information

UID:
2007-030-531
Claimant(s):
ALPHONSO SIMMONS
Claimant short name:
SIMMONS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-72704
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
ALPHONSO SIMMONS, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
May 22, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on claimant’s motion for permission to


serve and file a late claim pursuant to Court of Claims Act §10(6):

1-3 Motion for Permission to File a Late Claim by Alphonso Simmons, claimant; proposed Claim; Notice of Intention to File a Claim

  1. Reply Affirmation by Dewey Lee, Assistant Attorney General and attachments
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 available.[1] 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 Dept 2001).

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. ¶4].

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, supra.

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.


May 22, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)[“Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted).”]