New York State Court of Claims

New York State Court of Claims

McCRAY v. THE STATE OF NEW YORK, #2008-028-510, Claim No. NONE, Motion No. M-74001


Motion for late claim alleging prison assault is 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:
BY: Dennis M. Acton, Esq.
Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 16, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on movant’s motion for permission to file an untimely claim:

1. Notice of Motion and Supporting Affidavit of Michael McCray, pro se, with annexed Exhibit; and

2. Affidavit in Opposition of Dennis M. Acton, AAG.

Filed papers: None

Movant’s proposed claim alleges that on July 26, 2005, at Greene Correctional Facility he was assaulted by other inmates in the sleeping area to which he was assigned. He alleges that a correction officer assigned to that area had witnessed a confrontation starting and escalating but nevertheless left the area without providing for another officer to cover for him. Movant states that he suffered a fracture and dislocation of his jaw, damage to his teeth, and permanent disfigurement.

Late claim relief is available only if the motion is brought within the applicable CPLR Article 2 statute of limitations. If this negligence claim were asserted against a private citizen or organization, it would have to be commenced within three years (CPLR 214), and thus the application is timely.

In order to determine whether an application for permission to file a late claim should be granted, consideration must be given to the six factors listed in the Court of Claims Act § 10(6), as well as any other relevant factors. The existence or absence of any one of these factors is not determinative, and the list of factors is not exhaustive (Bay Terrace Cooperative Section IV, Inc. v New York State Employees’ Retirement System, Policemen’s and Firemen’s Retirement System, 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]). The six statutory factors are as follows:

(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 to be meritorious;

(5) whether the failure to file or serve upon the attorney general a timely claim or to serve a notice of intention resulted in substantial prejudice; and

(6) whether the claimant has any other remedy.

On the issue of delay, movant states that because he is a layperson he was not aware of the filing time limits for Court of Claims actions and, in addition, that his incarceration compounded his ignorance because it limited his ability to confer with counsel or to access legal references. It is well-established that ignorance of the law, whether that of the injured party or of an attorney, is not an acceptable excuse for delay (see e.g. Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977]; Sevillia v State of New York, 91 AD2d 792 [3d Dept 1982]). Nor will the mere fact of incarceration provide such an excuse unless the movant can factually establish that specific conditions of the incarceration directly prevented his ability to institute an action (see Plate v State of New York, 92 Misc 2d 1033, 1037-1038 [1978]; Bommarito v State of New York, 35 AD2d 458 [4th Dept 1971]).

On the other hand, it does not appear that movant would have any alternative remedy by which he could receive compensation for the alleged injuries.

The factors of notice, opportunity to investigate and potential prejudice to the Defendant are interrelated and will be considered together. Movant alleges that grievance complaints were filed in connection with this incident, an investigation was conducted, and reports and memoranda were written and provided to the facility Superintendent. This is believable because of the serious nature of movant’s injuries and because defendant, who has easy access to the records referenced by movant, does not deny that an investigation was, in fact, conducted.

Of the six enumerated factors set forth in §10(6), it is the appearance of merit that weighs most heavily, for unlike those who file their claims in a timely manner, a party seeking to file a late claim must demonstrate to the Court’s satisfaction that the proposed claim appears to be meritorious (see Witko v State of New York, 212 AD2d 889 [3d Dept 1995]; Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). To succeed, a movant must establish
that the proposed claim is not patently groundless, frivolous, or legally defective and that 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 [Ct Cl 1977]).
In this instance, the factual allegations contained in the proposed claim meet that threshold.

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting the requested relief. Movant therefore is directed to file and serve a claim identical to the proposed claim, annexed as Exhibit A to the moving papers, and to do so in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a within thirty (30) days of the date this Decision and Order is filed.

January 16, 2008
Albany, New York

Judge of the Court of Claims