New York State Court of Claims

New York State Court of Claims

DELEON v. THE STATE OF NEW YORK, #2008-029-035, Claim No. None, Motion No. M-75162


Inmate claimant’s motion for permission to file a late claim alleging a constitutional tort is 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):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Michelle M. Walls, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 5, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for permission to file a late claim pursuant to Court of Claims Act §10(6). The proposed claim, which claimant characterizes as a “constitutional tort”, arises from claimant being double-bunked at Shawangunk Correctional Facility from February 6, 2007 through May 15, 2007. Claimant alleges he was coerced into consenting to be double-bunked, that he was housed with inmates of a different racial and religious background from him and that as a result he sustained 100 days of pain and suffering as well as deprivation of his constitutional rights.

The motion must be denied for a number of reasons. Initially, the claim accrued on May 15, 2007, at the latest. Despite claimant’s characterizations of the alleged wrongful conduct as “negligent or intentional,” it is clear that the actions he alleges constitute a constitutional tort were intentional actions and decisions, not negligence. Thus this motion, which was dated June 21, 2008 and received by the Clerk of the Court on June 25, 2008, was made subsequent to the expiration of the underlying statute of limitation and is not properly before the court (Court of Claims Act §10[6]; Lyles v State of New York, 3 NY3d 396).

More fundamentally, the motion would be denied even if claimant had submitted it in a timely manner.

Court of Claims Act §10(6) sets forth various factors to be considered on an application to late file a claim, the most important of which is whether the proposed claim has the appearance of merit. It is claimant’s burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl, 1977]). Regardless of whether claimant has presented a reasonable excuse for not having timely interposed a claim (and the court finds he has not), or whether defendant had timely notice of the pertinent allegations and whether it would be substantially prejudiced by an order allowing late filing, it is improper to permit a defective claim, that would be subject to dismissal on motion, to be filed (Edens v State of New York, 259 AD2d 729 [2d Dept 1999]; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).

The gravamen of the proposed claim is that claimant’s constitutional rights were violated by his placement in cells with inmates who did not share his racial and religious backgrounds. His alleged damages all arise from conflicts supposedly caused by racial and religious friction. Claimant has identified no source for the contention, central to his claim, that an inmate has any right, constitutional or otherwise, to be housed only with inmates of the same race or religion. The court finds that no such constitutional right exists, that the proposed claim is therefore legally without merit and there is no basis to believe that claimant possesses a valid cause of action based on the facts alleged. Accordingly, it would be an improper exercise of discretion to grant this motion.

Moreover, claimant indicates that he filed an institutional grievance over his double-bunk situation. Thus, it does not appear that resort to a constitutional tort theory is necessary in order to provide redress for the alleged wrongful conduct (Martinez v City of Schenectady, 97 NY2d 78 [2001]; Singh v City of New York, 418 F Supp 2d 390 [SDNY 2005]); Bullard v State of New York, 307 AD2d 676 [3d Dept 2003]).

Accordingly, the motion is denied.

September 5, 2008
White Plains, New York
Judge of the Court of Claims

Papers considered:

1. Notice of Motion with supporting papers

2. “Letter in Affidavit Form”

3. Affirmation in Opposition