New York State Court of Claims

New York State Court of Claims

MOSES v. THE STATE OF NEW YORK, #2008-009-012, Claim No. NONE, Motion No. M-74517


Claimant’s application for late claim relief was granted.

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:
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
June 9, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim.

The following papers were considered by the Court in connection with this motion:
Motion, “Notice of Intention to File a Claim”[1] 1,2

Affirmation in Opposition 3

In his proposed claim, claimant alleges that he suffered personal injuries on March 14,2007, when he was assaulted by an unnamed correction officer at Mid-State Correctional Facility, where he was then incarcerated.

Pursuant to § 10(6) of the Court of Claims Act, a late claim application may be brought “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.” An application for late claim relief based upon allegations of an assault such as the proposed claim herein, constitutes an intentional tort, and must therefore be submitted within one year from the date of the incident forming the basis of the claim (CPLR § 215).

As indicated above, claimant alleges that the assault against him occurred on March 14, 2007, and this application was filed with the Clerk of the Court of Claims on February 4, 2008 (and served upon the Attorney General on or about January 28, 2008). Claimant’s application for late claim relief is therefore timely, even though the return date of the motion, or the date on which this claim is ultimately served and filed, is outside the limitations period (Johnson v State of New York, 131 Misc 2d 630; Jenkins v State of New York, 119 Misc 2d 144).

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth 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 file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; 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 (Matter of Gavigan v State of New York, 176 AD2d 1117). The presence or absence of any one particular factor is not necessarily dispositive of any application (Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979), and none of the factors can require denial as a matter of law.

With regard to excuse, claimant, proceeding pro se, states that he did not have access to professional legal counsel or to the prison law library during the statutory period for filing, due to the illness which was caused by the alleged incident forming the basis of his proposed claim. Nevertheless, incarceration, in and of itself, does not constitute a reasonable excuse for failure to timely serve and file a claim (Plate v State of New York, 92 Misc 2d 1033). However, medical incapacity of a claimant throughout the statutory period can serve as a reasonable excuse for failure to serve and file (Bloom v State of New York, 6 Misc 2d 553, affd 5 AD2d 930), but any such allegation must be supported by a physician’s affidavit or other proof that the claimant was unable to act in a timely manner (Cabral v State of New York, 149 AD2d 453). In this case, claimant has not submitted any physician’s affidavit or other proof to establish to the satisfaction of the Court that he was unable, for medical reasons, to timely serve and file a claim. Accordingly, the Court finds that claimant has not established any acceptable excuse for his failure to timely serve and file his claim herein.

The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. As indicated previously, claimant alleges that he was assaulted by an unknown correction officer on March 14, 2007 at Mid-State Correctional Facility. Claimant has not provided any information, either in his motion or proposed claim, as to whether any investigation was conducted, or whether any reports were made, following this incident. Claimant does indicate, however, that he was taken to the infirmary at the correctional facility for treatment of injuries suffered by him in this incident, and that medical records should therefore exist documenting his injuries. However, such records, assuming they exist, are insufficient to establish that the State had timely notice of the essential facts providing the basis of this claim, or that the State was provided with a sufficient opportunity to conduct an investigation into the circumstances surrounding this incident. Nevertheless, the Court is of the opinion that the State, without too much difficulty, has the ability to determine which correction officers were on duty at the time and place of this incident, and would not therefore be substantially prejudiced should it have to defend this claim.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).

Although defendant’s attorney asserts that claimant has failed to set forth a valid cause of action and legal theory upon which the State is liable, it is clear from this Court’s review of the submitted papers that a claim based upon the intentional tort of assault has been alleged, even though the identity of the alleged assailant is unknown. Based on these allegations, the Court finds that claimant has made a sufficient showing as to the appearance of merit to the satisfy the minimal standards of Santana.

It does not appear that claimant has any other available remedy.

Accordingly, after a review of the papers submitted herein, and after weighing and considering all of the factors set forth under Court of Claims Act §10(6), it is the opinion of this Court that claimant should be allowed to serve and file his proposed claim.

Therefore, it is

ORDERED, that Motion No. M-74517 is hereby GRANTED; and claimant is directed to file and serve his proposed claim, properly verified, within 45 days from the date of filing of this decision and order in the Clerk’s office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.

June 9, 2008
Syracuse, New York

Judge of the Court of Claims

[1]. Although captioned as a “Notice of Intention to File a Claim”, the Court has considered this document as claimant’s proposed claim.