1,2 Motion for Permission to File a Late Claim by Anthony Bennett, claimant;
proposed Claim and attached papers
No opposition filed
Anthony Bennett alleges in his proposed claim that he was wrongfully held in
New York State Department of Correctional Services [DOCS] custody at various
correctional facilities from June 16, 2005 to July 20, 2005. He states that he
withdrew a plea of guilty on May 10, 2005 in State Supreme Court, and does not
understand why he was then sent back to the “Department of
Corrections.” [Claim, ¶7]. He states that after withdrawing his plea,
his case was rescheduled in front of a different Judge on May 25, 2005, at which
time “. . . his lawyer did not argue for a bail hearing or R.O.R. . .
.[and] Claimant . . . was held in Contempt of Court, and was given (30) days in
jail, with a hearing date of July 21, 2005 . . . On June 16, 2005 . . .
however, [claimant] was sent back to Downstate Correctional Facility, and then
transferred to Auburn Correctional Facility, where he was kept in keep lock for
a total of six (6) days with no showers or recreation, then finally sent to
Willard Correctional Facility . . . Once the claimant was sent to the
Department of Corrections on June 16, 2005, the claimant was held in their
custody for a total of (34) days, without proper authorization, and proper
sentence commitment.” [Ibid. ¶¶ 3-6]. Mr. Bennett
further alleges that “after the plea was withdrawn the commitment order
was as a matter of Law void, and he . . . should NOT have been sent to the
Department of Corrections without proper authority, and proper process,
violating his Constitution Right to Due Process.” [Ibid. ¶ 8].
Claimant seeks damages for the 34 day detention, but does not indicate a total
In a letter to claimant from the New York County Defender Services - presumably
the attorneys representing claimant on his criminal charge - dated August 18,
2006 it is stated: “. . . Your original sentence (imposed on March 22,
2005 before Judge White) was illegal because the offense to which you plead
guilty was not an offense for which a sentence of the Williard program could be
imposed. When you were returned to Judge White you were given the option of
being resentenced to 1 and ½ to 3 years without Williard OR taking back
your plea. You chose to take back your plea and the case was sent back to Part
71 (Judge Berkman) for trial. Ultimately, in front of Judge Berkman, you again
pled guilty and were sentenced to an indeterminate term of 1 and ½ to 3.
That sentence was imposed on August 31, 2005 . . .” [Motion for Permission
to File a Late Claim, Exhibit D].
Claimant has also appended what appears to be a partial transcript of
proceedings in front of Judge Renee White, in New York County Supreme Court on
May 10, 2005. [Ibid. Exhibits H, I]. In this partial transcript, the
Court notes that the “plea is withdrawn” and a control date for the
case is set for “May 25" at “part 71.” [Id.].
Claimant has also appended portions of what appears to be a grievance stamped
as “received” at Midstate on September 28, 2006 [ibid.
Exhibit A, B, C]; correspondence from Claimant to Judge White [ibid.
Exhibit E]; to the Judiciary Complaint Board [ibid. Exhibit F]; to
Deputy Commissioner and Counsel Anthony J. Annuci [ibid. Exhibit G]; and
to Inmate Records [ibid. Exhibit K]; as well as correspondence to
claimant from his defense attorneys as noted above, [ibid. Exhibit D],
and from the New York County District Attorneys’ office [ibid.
Exhibit J]; as well as a handwritten notation to claimant from Inmate Records
[ibid. Exhibit K].
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 and 215.
Claimant states that the delay in filing the claim is excusable because he has
“. . . been gathering together all . . . [his] facts, and exhausting all .
. . [his remedies] in order to properly file a just claim, and not a frivolous
claim.” [Motion for Permission to File a Late Claim, ¶2]. He
indicates that the State had notice because “. . . on August 7, 2006 . . .
[he] wrote to Judge . . . White requesting information on who put in the motion
to transfer claimant to the Department of Corrections, along with other
information requesting explanation on the validity of the sentence
. . . ” [Ibid. ¶3].
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.
Claimant has not offered any excuse for the delay in serving and filing a claim
other than the assertion that he was “gathering” his facts and
“exhausting” his remedies. 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, also weigh against granting Claimant’s
motion. It has been almost two (2) years since this alleged false imprisonment
or wrongful confinement or other deprivation - it is not clear exactly what
cause of action claimant is attempting to assert, and whether and if the State
of New York is even involved - and thus the passage of time has been sufficient
to impede the State’s ability to investigate to its prejudice.
Accordingly, these factors weigh against granting the motion.
As noted, Claimant need not establish his claim prima facie, but must show the
appearance of merit. Although claimant refers to sentencing issues and his
attempts to discover why he was in State custody for thirty-four (34) days, it
is unclear exactly what harm he is alleging, or how the use of the appellate
process in the trial court and thereafter would not have addressed a sentencing
mistake, if there was one. To establish a case of wrongful confinement, a
claimant must show (1) the defendant intended to confine him, (2) that he was
conscious of the confinement, (3) that claimant did not consent to the
confinement and (4) the confinement was not otherwise privileged. If this is
the cause of action asserted, it is not shown that any confinement was not
otherwise privileged. As to other causes of action, the court is at a loss to
determine exactly what redress claimant is seeking, that is not otherwise
available through the appellate process. All that has been recited is that the
sentencing court allowed Claimant an opportunity to withdraw his plea once it
was determined he was not eligible for incarceration at the Willard Drug
Treatment Campus, that he did so, and some other sentence was imposed.
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-72889]
is in all respects denied.