New York State Court of Claims

New York State Court of Claims

GOMEZ v. THE STATE OF NEW YORK, #2008-030-535, Claim No. NONE, Motion No. M-74918


Late claim motion denied. No copy of proposed claim. No reasonable excuse, including no showing that medical condition or mental health impeded his ability to timely serve and file a claim. No notice, opportunity to investigate and there is likely prejudice to the State because of the apparent lack of notice of any assault as well as any description of what the nature of the claim may be. No appearance of merit given failure to include a proposed claim, or otherwise describe in motion papers what is the nature of the claim

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:
Third-party defendant’s attorney:

Signature date:
June 24, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for late claim relief:

  1. Motion for Permission to File a Late Claim by Jose Gomez, Claimant
  1. Affirmation by Dewey Lee, Assistant Attorney General and attached papers
In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available.[1] The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . .” Court of Claims Act § 10(6). Here, it is unclear what statute of limitations may apply, because other than indicating that the claim accrued on November 10, 2007, claimant does not indicate the nature of the claim except in the most oblique fashion. Namely, in numbered paragraph 2 of the Motion for Permission to File a Late Claim, in the context of explaining his excuse for late filing, he writes:
“Claimant suffer from post-traumatic stress syndrome and report his traumatic situation to MHO and DOC’s Medical staff. Claimant falls within Mental Hygiene Law 1.03 and CPL 220.15(e) (f). Claimant was assaulted by Green Haven c/f prison guards and suffer many injuries and mental trauma as well. Claimant pending surgery as a direct result of physical injuries.(sic).”[2]

Assuming a date of accrual of November 10, 2007, if it is an assault that is alleged, then the applicable statute of limitations is one (1) year; if medical malpractice is alleged, then the applicable statute of limitations is two years and six months; and if negligence is alleged, then the applicable statute of limitations is three (3) years, thus the motion is timely premised on such asserted date of accrual. Civil Practice Law and Rules §§215, 214-a and 214.

A copy of the proposed claim[3], must accompany the motion, allowing the court to ascertain the particulars of the claim, including the date of accrual, specific location of the alleged accident, and what permanent injuries are alleged. See Court of Claims Act §11(b); 22 NYCRR §206.6. Here, no copy of a proposed claim is attached, and the motion is therefore denied on that ground alone.

More substantively, the claimant has not established entitlement to late claim relief based upon a review of all the required statutory factors.

The excuse offered is simply that he is a lay person in the law and was not aware of the time constraints for service and filing of a claim. He also indicates that he suffers from handicaps, including a “low IQ” and an inability to read and write above the fourth grade level; as well as a “neuro-psychiatric condition” for which he has been hospitalized. [Motion for Permission to File a Late Claim, ¶ 2].

His mere incarceration, and movement within the system, any difficulty in obtaining representation by counsel or otherwise conferring with counsel, does not constitute a reasonable excuse in the nature of a disability[4], or otherwise. See Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl 1978). With respect to any impairment, more than a claimant’s statement that he was not in the right condition to pursue his claim is required - even in the context of a mental disability - in the form of medical records or a physician or psychiatrist’s affidavit. See Cabral v State of New York, 149 AD2d 453 (2d Dept 1989)[5]; Goldstein v State of New York, 75 AD2d 613, 614 (2d Dept 1980)[6]. There must be some showing that the circumstances of his incarceration and his illness prevented claimant from taking effective steps to perfect his claim within ninety (90) days of its accrual, or contact an attorney. Bommarito v State of New York, 35 AD2d 458, 459 (4th Dept 1971); see generally Court of Claims Act §10(3). Claimant has made no such showing, thus this factor weighs against him.

The absence of an excuse, however, is but one of the factors to be considered, and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, supra.

The closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, also weigh against granting the motion, largely because of the lack of specificity as to what the nature of the claim is. It cannot be assumed the State had actual knowledge of the facts giving rise to the claim merely because it owns and maintains a correctional facility, or because a report of an incident was filed [see Quilliam v State of New York, 282 AD2d 590 (2d Dept 2001)],[7] nonetheless in certain circumstances notice may be inferred if the occurrence would be noted and investigated in the normal course. Wolf v State of New York, 140 AD2d 692 (2d Dept 1988)[8]; see also Carmen v State of New York, 49 AD2d 965, 966 (3d Dept 1975);[9] Turner v State of New York, 40 AD2d 923 (3d Dept 1972).1[0] Claimant indicates that he filed a grievance, refers to “exhibits” ostensibly memorializing the incident or the grievance he filed, but does not attach them, thus the court has nothing to review to adequately assess whether there was sufficient notice. [Motion for Permission to File a Late Claim, ¶3].

Finally, the passage of time - given the lack of specificity as to what the nature of the claim is - impedes the State’s ability to investigate to its prejudice. Accordingly, as stated, these factors weigh against granting the motion.

A claim appears to be “meritorious” within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates 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). Claimant need not establish a prima facie case at this point, but rather the appearance of merit. It is well settled that the appearance of merit is viewed as the most important factor to consider in an application to serve and file a late claim, as it would be an act of futility to permit service of a late claim when it is patently defective or is subject to a complete defense. Given the failure to include a proposed claim, or to otherwise describe the nature of the claim in the papers that were submitted, there is no indication how the State could be held liable to this claimant.

Accordingly, Claimant's motion [M-74918] for permission to serve and file a late claim is hereby in all respects denied.

June 24, 2008
White Plains, New York

Judge of the Court of Claims

[1]. The defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)[“Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true . . . (citations omitted).”]
[2]. He also indicates later in the Motion for Permission to File a Late Claim, when discussing the appearance of merit, that “As indicated by claim claim is based upon intentional torts and negligence as a direct result from being maliciously assaulted, by prison guards. See: Exhibits (supporting documents).” None are attached.
[3]. Court of Claims Act § 10(6) states in pertinent part: “. . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . . ”
[4]. Although Court of Claims Act §10(5) provides that a claimant under a “legal disability” may present a claim two (2) years after such disability is removed, other than his own statements there is no indication of whether he fulfills the traditional legal disabilities of infancy, incompetence or insanity that are contemplated by the statute. See Civil Practice Law and Rules §208. Claimant has not shown how he is unable to protect his legal rights.
[5]. “The only excuse offered in support of the contention that the delay was excusable was a conclusory assertion by the claimant’s counsel, unsupported by a physician’s affidavit, that the claimant’s alleged hospitalization at some undisclosed time delayed her from contacting an attorney, and that the claimant had no knowledge of the 90-day statutory filing requirement.”
[6]. “Although claimant alleged she was either hospitalized or convalescing for the entire period during which she could have timely filed the claim, such alleged incapacity is inadequate as an excuse for late filing without either a physician’s affidavit or hospital records . . . (citation omitted).”
[7]. “. . . the claimant failed to show that the State had notice of the essential facts constituting the claim. The claimant may not rely on the incident report completed by the State University of New York at Stony Brook campus police shortly after the accident occurred or the prehospital care report prepared by the Stony Brook ambulance personnel. Those reports made no mention of the allegedly defective condition which caused the claimant to slip and fall, and did not connect the claimant's injuries to any negligence on the part of the State.” Quilliam v State of New York, supra at 591.
[8]. There was an accident report and a State employee was involved in accident.
[9]. There was a police accident report and internal memoranda.
1[0]. Not enough that defendant maintains facility.