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