New York State Court of Claims

New York State Court of Claims

GIBSON v. THE STATE OF NEW YORK, #2007-030-547, Claim No. NONE, Motion No. M-73270


Late claim motion denied. Pro se claimant appears to be applying to join a federal lawsuit and/or already participant in 1983 action fending in federal court, alleging assault by staff at hospital. Did not serve Attorney General’s Office with motion; did not address 10(6) factors; no proposed claim; no appearance of merit

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
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 19, 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):

1-3 Notice of Motion for Permission to File a Late Claim Pursuant to Article 10(6) of the Court of Claims Acts; Affidavit of Motion for Permission to File a Late Claim Pursuant to Article 10(6) of the Court of Claims Act by Bennie Gibson, Claimant; Affidavit of Service and attached paper

No opposition filed

Bennie Gibson indicates in the papers filed that he seeks permission to file a late claim and to “join” litigation that is apparently pending in United States District Court. His affidavit asserts that in “February or March, 2003” he was attacked by “security hospital therapeutic aides” and harassed generally over wearing a “Gap t-shirt sleeve over [his] head to hold back dredlocks” when others who wore the same gear were not so harassed. [Affidavit by Bennie Gibson, ¶5]. Thereafter, he turned in the hat, and remarked to the aides that they were allowing people to smoke marijuana in front of them, yet were harassing him. After he took a shower, Mr. Gibson went to his room to read, but was visited by one of the aides, who told him to “go to seclusion room because the . . . [the two aides] wished to speak to him.” [Ibid. ¶11]. They then assaulted him for approximately “6 to 8 minutes.” [Ibid. ¶12]. He alleges he suffered “bloodshot swollen eyes, lumps on head, chest, face, cuts on face, sore back, chest area, swollen legs, lumps, speedknots, abrasions, bruises to arms, chest, severe pain.” [Ibid. ¶13].

It appears that some sort of hearing may have been held concerning this incident, because claimant mentions in his affidavit that other patients “testified” and that staff indicated that he had “ran out swingin at staff and thats why . . . [he] was hurt.” (sic) [Ibid. ¶¶16 and 18]. Claimant also indicates that there were witnesses to the assault, who were also threatened. [Ibid. ¶¶14, 15 and 18].

A letter from the Attorney General’s Office to a United States Magistrate, dated January 4, 2007, and attached to claimant’s papers, appears to refer to this same incident, as well as discovery issues that had come up in the context of what appears to be claimant’s §1983 action against the State of New York and Orange County. [See 42 USC §1983].

The affidavit of service filed with the motion indicates only that the papers were sent to this court on April 17, 2007. There is no indication that the Office of the Attorney General was ever served with this application for late claim relief.

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. 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 . . . ” § 10(6) of the Court of Claims Act. Here, the applicable statute of limitations is one (1) year if the cause of action asserted is for the intentional tort of assault. §215 of the Civil Practice Law and Rules. Given a nebulous accrual date of “February or March, 2003” the motion is not timely, and is denied on untimeliness grounds alone.

Additionally, claimant has not offered any excuse for the delay in serving and filing a claim and indeed has not addressed any of the above noted statutory factors. Court of Claims Act §10(6).

Finally, claimant has not submitted a proposed claim as also required. [Id.].

Accordingly, claimant’s motion for permission to serve and file a late claim is in all respects denied.

July 19, 2007
White Plains, New York

Judge of the Court of Claims