Claimant requests permission to file and serve a late claim. The application is
Claimant, an inmate at Clinton Correctional Facility at the time the claim
accrued, alleges that defendant discriminated against him because of his sexual
orientation and also that defendant refused to provide claimant with adequate
medical care. In particular, claimant alleges that on February 27, 2006,
defendant failed to provide medication to claimant for pain allegedly caused by
“post traumatic headaches” and from allegedly being hit in the head
with a baseball bat. Claimant further alleges that defendant has refused to
provide claimant brassieres which properly fit claimant, and that
defendant’s refusal constitutes unlawful discrimination based upon
claimant’s sexual orientation.
The proposed claim requests money damages in the amount of one million dollars
($1,000,000.00) for pain and suffering and mental and emotional injuries.
The claim was required to be filed and served within ninety days of its accrual
“unless the claimant shall within such time serve upon the attorney
general a written notice of intention to file a claim” (Court of Claims
Act §§ 10  and [3-b]). If the claimant served a timely notice of
intention, § 10 requires that he or she serve and file the claim within one
year of accrual for intentional torts and within two years of accrual for
negligence or unintentional torts.
The filing and service requirements set forth in Court of Claims Act § 10
apply to state and federal “constitutional torts” whether
categorized as “negligent, unintentional or intentional torts”
(Lyles v State of New York, 3 NY3d 396, 400-401 ).
Claimant allegedly served an untimely notice of intention to file claim on the
Attorney General or about June 2, 2006, but has not provided a copy of the
notice of intention. Having failed to comply with Court of Claims Act § 10,
claimant seeks permission to file a late claim.
Pursuant to Court of Claims Act § 10 (6) the Court, upon application and
in its discretion, may permit the late filing and service of a claim “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.” The statute requires that the “claim proposed to be
filed, containing all of the information set forth in section eleven of this
act, shall accompany such application.”
The claim accrued on February 27, 2006. The statute of limitations for a
medical malpractice claim is two years and six months (CPLR § 214-a). The
statute of limitations for a constitutional tort claim is three years (CPLR
§ 214 ; Brown v State of New York, 250 AD2d 314, 318 [3d Dept
1998]). The claim, if made against a citizen of the state, would not be barred
under the provisions of article two of the civil practice law and rules.
In determining the application, Court of Claims Act § 10 (6) provides
Case law interpreting the statute instructs that “[i]n arriving at such a
determination, the Court of Claims is required to consider, among other factors,
those enumerated in Court of Claims Act § 10 (6), no one factor being
controlling” (Donaldson v State of New York, 167 AD2d 805, 806 [3d
Dept 1990]). In fact, “[n]othing in the statute makes the presence or
absence of any one factor determinative” (Bay Terrace Coop. Section IV
v New York State Employees’ Retirement System Policemen's and Firemen's
Retirement System, 55 NY2d 979, 981 ).
Further, “it is well settled that the Court of Claims’ broad
discretion in this area should be disturbed only in the face of clear
abuse” (Calco v State of New York, 165 AD2d 117, 119 [3d Dept
1991], lv denied 78 NY2d 852 ).
The ninety day statutory period to file and serve the claim or notice of
intention expired on May 30, 2006. As detailed above, claimant allegedly served
an untimely notice of intention to file claim on the Attorney General or about
June 2, 2006, but has not provided a copy of the notice of intention. The motion
to file a late claim was served by regular mail on May 16, 2007, nearly a year
after expiration of the statutory period.
Claimant asserts that his failure to timely file and serve his claim is
excusable because he did not have access to a lawyer, was in a special housing
unit (SHU) for an unspecified period of time and had no money to mail his claim.
“[C]onclusory allegations that one is incarcerated and without access to
legal references have . . . been rejected as a reasonable explanation”
(Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002],
lv dismissed 99 NY2d 589 ). Claimant provides no information about
when he was placed in SHU and when he was released. In addition, claimant states
that he was able to file at least two facility grievances regarding the same
complaints set forth in the proposed claim during the time period he claims he
was prevented from serving and filing his claim due to placement in SHU. The
Court finds that claimant has not provided a reasonable excuse for untimely
filing on the basis of his unspecified placement in SHU.
Claimant has further failed to show that indigence prevented timely service of
his claim or notice of intention. Claimant provides documentation showing that
he was refused a postage advance from the facility on or about May 23, 2006
because he had exceeded the $20 limitation for postage advances. The facility
advised claimant in writing of the denial and advised him that “exceeding
the $20.00 limit shall only be approved if you provide proof (ex. statute of
limitations, court rules, etc.) why this mail must be sent out in this time
frame.” Claimant provides no proof that he ever complied with the quoted
requirement for obtaining a further postage advance. The documents provided by
claimant indicate that he continued to request a postage advance on three
occasions (once prior to, and twice after expiration of the ninety day period)
but never complied with the facility requirement that he demonstrate the legal
necessity of the postage advance.
Claimant fails to show that the defendant had notice of the essential facts
constituting the claim, stating only that a certain nurse practitioner
“knew about my headaches and she refused to assist my medical needs
because of my sexual orientation.” Claimant offers no documentation of his
alleged medical needs and problems despite his allegation that such
documentation exists and was shown by him to the nurse practitioner. Further,
there are no documents offered to show the nurse practitioner refused to assist
him, despite claimant’s reference to two grievance proceedings allegedly
initiated by claimant as a result of the claimed discrimination and refusal of
Claimant’s failure to produce any documents or records, including
the grievances he allegedly prosecuted, weigh against satisfaction of
claimant’s obligation to show that defendant had an opportunity to
investigate the circumstances underlying the claim. Claimant has thus failed to
show that substantial prejudice would not result to the defendant if the late
claim application is granted.
With respect to whether the claimant has any other available remedy, claimant
states that he filed two grievances regarding the issues set forth in the
proposed claim, although he fails to provide any information or documentation as
to the outcome of those grievances. Assuming that the grievances were denied,
claimant was entitled to seek relief through a CPLR Article 78 proceeding. The
fact that an alternative remedy existed weighs against granting claimant’s
In considering “whether the claim appears to be meritorious,” case
law requires that the Court find that “the proposed claim is not patently
groundless, frivolous or legally defective, and upon consideration of the entire
record, there is cause to believe that a valid cause of action exists”
(Rizzo v State of New York, 2 Misc 3d 829, 834 [Ct Cl 2003]).
The claimant alleges that he sustained injury and therefore seeks damages due
to defendant’s alleged failure to provide adequate medical care. As such,
the proposed claim alleges both medical malpractice and a failure to provide
adequate medical care. It further alleges a constitutional tort asserting
discrimination on the basis of sexual preference.
Although the Court of Appeals has recognized a narrowly defined cause of action
for a state “constitutional tort” in the Court of Claims (Brown v
State of New York, 89 NY2d 172 ), it is clear that a constitutional
tort remedy will not be implied when an adequate alternative remedy exists
(Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Augat
v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91
NY2d 814 ). Claimant could have raised his state constitutional claim in
the context of an article 78 proceeding in Supreme Court (see Bullard
v State of New York, 307 AD2d 676, 678-679 [3d Dept 2003]).
With respect to any allegation that claimant’s federal constitutional
rights were violated, it is well-settled that no cause of action for damages
against the State of New York exists for an alleged violation of an
individual’s rights under the United States Constitution since the State
is not a “person” amenable to suit pursuant to 42 USC § 1983
(see Matter of Gable Transport, Inc. v State of New York, 29 AD3d
1125 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496, 498 [2d
Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989];
Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986)]).
Claimant fails to show that there is any merit to his medical
malpractice/denial of adequate medical care claim. Conclusory allegations of
medical malpractice, unsupported by competent evidence establishing its
essential elements, are insufficient to state a prima facie case. Through a
medical expert, it must be shown that defendant deviated from the standard for
good and acceptable care in the locality where the treatment occurred and that
the deviation was the proximate cause of the injury (Torns v Samaritan
Hosp., 305 AD2d 965, 966 [3d Dept 2003]; Yamin v Baghel, 284 AD2d
778, 779 [3d Dept 2001]; Bracci v Hopper, 274 AD2d 865, 867 [3d Dept
In order for a prisoner to prevail on a claim that he has been denied adequate
medical care, he must demonstrate that prison officials acted in a manner
“sufficiently harmful to evidence deliberate indifference to serious
medical needs” (Estelle v Gamble, 429 US 97, 106 , reh
denied 429 US 1066 ).
Despite claiming that medical records and/or documents exist showing a
diagnosis of post traumatic headaches and despite allegedly having pursued
grievances regarding inadequate medical treatment and the alleged
discrimination, claimant provides no records or documents showing that he
suffers from any injuries or medical condition. Additionally, claimant fails to
document in any manner that defendant failed to provide medication to claimant
for pain allegedly caused by post traumatic headaches.
Based upon a balancing of the factors set forth in section 10 (6) and
recognizing that “it would be futile to permit a defective claim to be
filed even if the other factors . . . supported the granting of the claimant's
motion” (Savino v State of New York, 199 AD2d 254, 255 [2d Dept
1993]), the application to file a late claim is denied.