Motion for late claim relief was denied.
|Claimant short name:||PETTUS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||James Pettus, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 29, 2008|
|See also (multicaptioned case)|
Movant, a pro se inmate, seeks permission to file a claim late. By Decision and Order dated October 1, 2007 this Court dismissed claim number 112647 upon the movant's failure to serve the claim upon the Attorney General pursuant to Court of Claims Act § 11 (a) (see Pettus v State of New York, Claim No. 112647, Ct Cl, October 1, 2007, Collins, J. [UID# 2007-015-235]. In support of the instant motion to serve and re-file the claim pursuant to Court of Claims Act § 10 (6) movant submitted only a copy of the order dismissing the prior claim. Although no proposed claim was submitted, the previously filed claim alleged that the State was liable as the result of the following prosecutorial misconduct:
1) PROSECUTED PLAINTIFF FOR OFFENSE COMMITTED IN BRONX COUNTY,
2) OBTAINED INDICTMENT FOR FILING FALSE INSTRUMENT 2D DEGREE YET TRIED PLAINTIFF FOR FIRST DEGREE,
3) UPON OBTAINING INDICTMENT, ISSUED BENCH WARRANT, AS OPPOSED TO WARRANT OF ARREST,
CAUSING MY PERSON TO BE PLACED IN A STATE GOVERNMENTAL ENTITY [D.O.C.] WHERE INJURIES AND DAMAGES OCCURRED.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
The first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of section 10 requires that a motion to file a late claim be made "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." It appears that the claim sought to be asserted by the movant is for wrongful confinement related to the conduct of the Assistant District Attorney who prosecuted him. As a wrongful confinement claim accrues on the date the wrongful confinement ends, the movant's application is not yet time-barred (see Ramirez v State of New York, 171 Misc 2d 677 ; CPLR 215).
Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 ). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 ). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 ).
The instant application was made following the Court's order dismissing the previously filed claim for failure to serve the Attorney General. Movant asserts that the failure to properly serve the claim was a "mistake." However, neither ignorance of the law nor a movant's inattention are acceptable excuses for the failure to timely serve and file a claim (Matter of Robinson v State of New York, 35 AD3d 948  [ignorance of the law not an acceptable excuse for delay]; Erca v State of New York, 51 AD2d 611 , affd 42 NY2d 854 [mistake as to proper entity to sue not an acceptable excuse for the delay]; Block v New York State Thruway Auth., 69 AD2d 930 [clerical error leading to filing on the 94th day not an acceptable excuse for the delay). The Court finds that the absence of a reasonable excuse weighs against the movant in determining this motion
Movant completely failed to address the intertwined factors of notice, opportunity to investigate and prejudice in his affidavit in support of the instant motion. The fact that a prior claim was filed provides no basis for concluding that the defendant was on notice of the claim and had a reasonable opportunity to investigate inasmuch as the prior claim was never served upon the defendant. These factors weigh against granting of the motion.
With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates that the proposed claim is not "patently groundless, frivolous, or legally defective" and 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 1,11 ). The Court finds that the movant has failed to meet the above minimum standard for establishing the potential merit of his claim. No individuals are identified in the claim, no dates are provided and no supporting proof has been submitted. In view of the fact that this is at least the third attempt to assert what appears to be the same claim, the claim is also barred by res judicata (see generally Parker v Blauvelt Volunteer Fire Co., Inc., (93 NY2d 343, 347-348 )(1) .
As to the final factor to be considered, it appears that claimant has an alternative remedy by proceeding in the Supreme Court pursuant to CPL article 440.
Consideration of the totality of factors set forth above leads this Court to the conclusion that the movant has failed to make a sufficient showing to warrant granting his application. Accordingly, the motion is denied.
February 29, 2008
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers.
1. Additionally, it appears the confinement was privileged in the absence of an allegation that the order of commitment was invalid on its face or that the court lacked jurisdiction to issue the order (see, e.g., Murray v Goord, 1 NY3d 29, 32  ; Holmberg v County of Albany, 291 AD2d 610, 612 , lv denied 98 NY2d 604 ; Ferrucci v State of New York, 42 AD2d 359, 361 , affd 34 NY2d 881 ).