New York State Court of Claims

New York State Court of Claims

GUARINO v. THE STATE OF NEW YORK, #2007-030-544, Claim No. NONE, Motion No. M-73248


Late claim motion denied. Inmate claimant alleged kept incarcerated three days beyond sentence and commitment order issued by Queens County Supreme Court. Did not have reasonable excuse; three years since event, thus State’s ability to investigate is impeded to its prejudice; did not show appearance of merit to cause of action for wrongful confinement, or how use of appellate process not alternative remedy.

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:
Third-party defendant’s attorney:

Signature date:
July 16, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


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):
1,2 Motion for Permission to File a Late Claim by Raymond Guarino, claimant; proposed Claim and attached papers

  1. Affirmation in Opposition by Michael T. Krenrich, Assistant Attorney General
Raymond Guarino alleges in his proposed claim that he was wrongfully held in New York State Department of Correctional Services’ [DOCS] custody at Downstate Correctional Facility from September 18, 2004 to September 21, 2004, in contravention of an “order of sentence and commitment issued by Supreme Court, County of Queens on August 7, 1997.” [Notice of Claim, ¶2]. He indicates that he has suffered damages for “the loss of free association with his family” and mental and emotional distress. There is no dollar amount set forth as a total sum claimed. See Court of Claims Act § 11b.

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 negligence cause of action is what is alleged. Civil Practice Law and Rules §214. For the sake of argument, the court will view the application as marginally timely, since three (3) years have not elapsed since the accrual of the claim in September 2004.

Claimant states that the delay in filing the claim is excusable because he is not a lawyer nor did he have access to professional legal counsel, and that he was “not aware” that the conduct of DOCS was “actionable until November 2006.” [Motion for Permission to File Late Claim, ¶ ¶ 2 A & B]. 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 in the nature of a disability, or otherwise. See Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl 1978). 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 not offered any excuse for the delay in serving and filing a claim other than the assertion that he did not know he could maintain a lawsuit, and that he is not a lawyer, 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 three (3) years since this alleged wrongful confinement 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.

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 his claim prima facie, but must show the appearance of merit. Although claimant refers to sentencing issues, 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. The proposed claim does not assert any “total sum claimed” in any event.

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 he was kept by DOCS for three (3) days beyond that time period ordered by the sentencing court, but no copy of an order of commitment or other more specific information concerning the sentence is provided.

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-73248] is in all respects denied.

July 16, 2007
White Plains, New York

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).”].