New York State Court of Claims

New York State Court of Claims



CORRECTION OFFICER SCOT SHEPPARD, #2008-016-019, Claim No. None, Motion No. M-74388


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:
Vincent Ferrer, Pro Se
Defendant’s attorney:
Andrew M. Cuomo, Attorney GeneralBy: James E. Shoemaker, Esq., AAG
Third-party defendant’s attorney:

Signature date:
May 16, 2008
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant Vincent Ferrer moves for an order permitting him to file a late claim pursuant to §10.6 of the Court of Claims Act (the “Act”). In his proposed claim[1], Mr. Ferrer alleges that he was confined in the Special Housing Unit (“SHU”) at Sullivan Correctional Facility from August 21 to August 29, 2007 for being in possession of a weapon, when he did not in fact have a weapon. He also alleges that when he was released from the SHU, he learned that items of his personal property were missing. 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.[2]

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). Here, these factors weigh in favor of claimant. Defendant’s submissions on this motion demonstrate that the State has maintained documentation concerning the disciplinary proceeding at issue, as well as the lost property claim. Nor has the passage of time been so great that the State’s ability to investigate would be impeded to its prejudice. With regard to an alternate remedy, defendant concedes that this court is the sole proper venue for Ferrer’s claim. As to excuse, claimant states that he has a “lack of legal knowledge.” Such is not a recognized excuse for the purposes of the Act. See, e.g., Matter of E.K. (Anonymous) v State of New York, 235 AD2d 540, 652 NYS2d 759 (2d Dept 1997), lv denied, 89 NY2d 815, 659 NYS2d 856 (1997).

The remaining factor to be considered is whether the proposed claim appears meritorious. With regard to Ferrer’s SHU stay, "[c]orrections personnel are entitled to absolute immunity for those ‘discretionary decisions in furtherance of general policies and purposes where the exercise of reasoned judgment can produce different acceptable results.’" Minieri v State of New York, 204 AD2d 982, 613 NYS2d 510, 511 (4th Dept 1994), citing Arteaga v State of New York, 72 NY2d 212, 532 NYS2d 57 (1988). It should also be noted that "[d]isciplinary proceedings in correctional facilities that are conducted consistent with the applicable rules and regulations are covered with a blanket of immunity . . . The fact that claimant was ultimately found not guilty of the charge does not give rise to a viable claim." Brown v State of New York, Ct Cl filed 10/27/98, Bell, J. (unreported, claim nos. 94875 and 94876). Ferrer has not alleged that defendant violated any rules or regulations with regard to his disciplinary hearing, in terms of timing, or otherwise. Finally, as to claimant’s property, the late filing remedy of §10.6 of the Act is not available for inmate lost property claims. See, e.g., Roberts v State of New York, 11 AD3d 1000, 783 NYS2d 190 (4th Dept 2004).

Given that Mr. Ferrer has no valid legal basis for his claim, he cannot succeed on this motion, even though he has satisfied four of the statutory factors. The Second Department has ruled that :

[I]t would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the [late claim motion] . . .

Prusack v State of New York
, 117 AD2d 729, 730, 498 NYS2d 455, 456 (1986). Accordingly, having reviewed the submissions[3], IT IS ORDERED that motion no. M-74388 be denied.

May 16, 2008
New York, New York

Judge of the Court of Claims

  1. [1]Claimant did not attach a proposed claim to his moving papers. For the purposes of this motion, the totality of his moving papers will be considered the proposed claim.
  2. [2]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).
  3. [3]The Court reviewed the following: claimant’s notice of motion with affidavit in support and “Statement of Claim”; and defendant’s affirmation in opposition with exhibits A through D.