New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2008-016-008, Claim No. None, Motion No. M-75601


Late claim motion was denied.

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):

Alan C. Marin
Claimant’s attorney:
David B. Rankin, Esq.
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: Gwendolyn Hatcher, Esq., AAG
Third-party defendant’s attorney:

Signature date:
February 10, 2009
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Matthew Perez moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). In his proposed claim, Mr. Perez alleges that “on or about October 19, 2007 . . . the New York City Criminal Court . . . ordered the Claimant released from custody after granting his motion under CPL 30.30 . . . Instead of releasing him from custody forthwith in compliance with the Criminal Court order, employees, servants, and/or agents of the [State of New York] continued to detain Complainant in the Criminal Court’s holding cell and later returned him to detention at Rikers Island.” According to the proposed claim, prior to such order, Perez had been held at Rikers Island since early October 2007. In order to determine this motion, six factors enumerated in the Act must be considered: whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.[1]

The first three factors – whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998). As set forth below, claimant fails to provide any information as to how the State was allegedly negligent. It is thus not possible to determine whether the State had knowledge of the facts underlying this claim. However, documentation presumably exists which would enable the State to investigate, and no prejudice has been alleged.

As to an alternate remedy, claimant alleges that after it was ordered that he be released, he was held for three days at Rikers Island. He also alleges that during those days, he was assaulted by inmates and by “prison guards in the employ of the [State].” Contrary to claimant’s assertion, guards at Rikers Island are not State employees; Rikers Island is a facility of the City of New York Department of Correction. See The Green Book, The Official Directory of the City of New York (2008-09 edition at p. 104). Claimant thus has an alternate remedy against the City of New York - - which cannot be brought in the Court of Claims.

With regard to excuse, claimant alleges that “[s]ubstantial delay was incurred awaiting production of court documents related to this claim . . .” See ¶23 of the September 24, 2008 affirmation of David B. Rankin. Aside from the fact that no such documents are attached to his papers, claimant has advanced no authority to suggest that this is a valid excuse for the purposes of the Act.

Finally, it must be determined whether the proposed claim appears meritorious. Perez fails to provide his own affidavit or any documentation on this motion; all that has been submitted is his attorney’s affirmation. It is thus unknown what the terms of the order directing his release were. Moreover, while he makes reference to the New York State Department of Correctional Services, there are no allegations in his claim relating to any state correctional facility; as set forth above, Rikers Island is a New York City facility. To the extent that claimant refers to the “Court System of the State of New York,” other than a conclusory allegation of negligence, there is no elaboration of the alleged role of the State. In view of the foregoing, claimant fails to show the appearance of merit. See Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11, 399 NYS2d 395, 402-03 (Ct Cl 1977).

Accordingly, having considered the six factors in view of the parties’ submissions[2], IT IS ORDERED that motion no. M-75601 be denied.

February 10, 2009
New York, New York

Judge of the Court of Claims

  1. [1]See Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979, 449 NYS2d 185 (1982); Scarver v State of New York, 233 AD2d 858, 649 NYS2d 280 (4th Dept 1996).
  2. [2]The following were reviewed: claimant’s notice of motion with affirmation in support and exhibit 1 (proposed claim); and defendant’s affirmation in opposition.