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