New York State Court of Claims

New York State Court of Claims

DUBERRY v. THE STATE OF NEW YORK, #2008-030-584, Claim No. NONE, Motion No. M-75662


Late claim motion denied. Unclear when various incidents alleged occurred; including assault(s) by inmates, failure to process grievance complaints, failure to provide access to the law library, wrongful confinement, inadequate medical care, etc. though all accrual dates appear to be at least 3 to 4 years ago. No proof of when present motion served in order to establish whether motion timely. No excuse; State prejudiced by delay; partial alternative remedies available in federal and state supreme courts; no appearance of merit. No expert for medical malpractice cause of action

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:
December 15, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion:

1, 2 Notice of Motion to Amend Complaint; Affidavit in Support of Motion to Amend Complaint by Andre Dolberry and attached papers (sic)

  1. Affirmation in Opposition for Leave to File Late Claim by Barry Kaufman, Assistant Attorney General and attached exhibits
4,5 Reply to Defendant’s Request received November 10, 2008; Letter in Support of Motion received November 21, 2008

Claimant alleges in a four page, handwritten claim that the defendant failed to process his grievance complaints, failed to protect him from an assault (or assaults) by a fellow inmate (or inmates) who was (were) a known threat, wrongfully confined him, placed him in general population when they should not have, failed to provide adequate medical care, and failed to properly process his legal mail. [Proposed Claim, pages I - IV]. It is difficult to ascertain from a plain reading of the claim when these incidents are alleged to have occurred, but claimant has written in the claim that the failure to process grievance documents occurred “on or about” September 2005 and concerned a September 2004 fight; inmate on inmate assault (or assaults) occurred in September 2005 and/or October, 2005; confinement in the special housing unit (SHU) occurred “on or about” October 2005; a failure to provide adequate medical care occurred “on or about” October 2004 and September 2005; and failures to process legal mail properly occurred “on or about” August 2004 to August 2005.

Read in context, claimant’s primary complaint appears to be related to the assault or assaults, in that he further alleges that he suffered physical and mental injuries, including “several lacerations on his torso, [and] speed knots.” [Proposed claim page IV]. The claim also mentions retaliatory writing of misbehavior reports by an unnamed correction officer, suspension of his open parole date as a result of the incidents, deprivation of law library usage, and harassment by facility personnel. He has attached to the motion papers a further fifty-two (52) pages of handwritten documents, including a Statement of Facts, diagrams, some correspondence, grievance documents, and a personal property claim form.

Significantly, a motion for permission to serve and file a late claim 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). When exactly this claim and the various causes of action claimant is asserting accrued for late claim purposes, based upon the narrative presented, is difficult to ascertain. Thus, for any negligence claim, such as an allegation that the defendant failed to protect claimant from an inmate-on-inmate assault, the time within which to seek late claim relief is measured three (3) years from accrual, with respect to any constitutional tort claim it is also three (3) years; for medical malpractice, the applicable statute of limitations is two and one-half (2 ½ ) years from accrual, and a cause of action for intentional tort - such as the claims concerning mail room misfeasance or misconduct by correction officers - has a statute of limitations of one (1) year from accrual. See Civil Practice Law and Rules §§214, 214-a, 215(3).

In this regard, a motion is “made, when a notice of motion . . . is served.” Civil Practice Law and Rules §2211; see also Jenkins v State of New York, 119 Misc 2d 144, 145 (Ct Cl 1983). According to a date stamp on the copies of claimant’s motion papers appended to defendant’s affirmation in opposition, the motion was received by the attorney general’s office on October 15, 2008. [Affirmation in Opposition, Exhibits A and B]. An affidavit of service attached to the motion papers is undated, although it is notarized on July 9, 2008, and refers to an”attached tort claim.” That same affidavit of service has a stamp indicating it was “returned” from the Court of Claims on September 9, 2008. The office of the Chief Clerk advises that a document was returned by the filing office on September 9, 2008 date because no filing fee or fee waiver application was included. The present motion papers are stamped “received” by the Court of Claims on October 9, 2008. Other than the affidavit of service noted above - clearly referable to a different document than the present motion - no other affidavit of service attesting to service of this motion has been attached to establish when the motion was “made.”

Claimant has not shown when the motion papers were served in the first instance, in order to determine whether the motion is timely.[1] Court rules require that proof of service of motion papers be filed with the Office of the Chief Clerk of the Court of Claims. 22 NYCRR §206.9. Where the timeliness of the request for relief is an integral part to the resolution of the application - such as in considering a motion for late claim relief - providing proof of service of the motion is vital. Although the court can “guess” that claimant likely mailed his motion papers some time in the first part of October 2008 based upon the date the papers were received in the attorney general’s office, showing that the application for late claim relief was timely served is part of claimant’s burden on the motion, just as it is claimant’s burden to establish service of his claim by a preponderance of the evidence. See generally Boudreau v Ivanov, 154 AD2d 638, 639 (2d Dept 1989); Maldonado v County of Suffolk, 229 AD2d 376 (2d Dept 1996). This is because the court’s discretion in allowing a late claim to be filed extends only to allowing such filing to occur within the time frame that a lawsuit against a defendant other than the State of New York could have been brought. See Court of Claims Act §10(6); Williams v State of New York, 235 AD2d 776, 777 (3d Dept 1997) lv denied 90 NY2d 806 (1997); Roberts v City University of New York, 41 AD3d 825, 826 (2d Dept 2007); Simon v State of New York, 12 AD3d 171 (1st Dept 2004).

The making of the motion, too, must occur (necessarily) within the same limitations periods.

It has been more than three or four years since most of the factual scenarios complained of in the proposed claim. A claimant proceeds at his peril when he waits until the last possible moment to seek permission for late claim relief, and then fails to provide proof of service of the motion for such relief. The motion for late claim relief is denied because claimant has failed to provide such proof, and because the causes of action asserted are likely time-barred.

More substantively, the motion is denied as well.

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 Court of Claims Act §10(6). 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. 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).

His mere incarceration, and movement within the system, and any asserted difficulty in obtaining representation by counsel or otherwise conferring with counsel, does not constitute a reasonable excuse in the nature of a disability, or otherwise. See Innis v State of New York, 92 AD2d 606 (2d Dept 1983), affd, 60 NY2d 654 (1983); Plate v State of New York, 92 Misc 2d 1033, 1037-1039 (Ct Cl 1978). There must be some showing that the circumstances of his incarceration 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).

In terms of excuse, claimant indicates that he mailed out five (5) envelopes to the court from Downstate Correctional Facility - he does not indicate when - some of which were wrongfully returned by the mail room clerk. [Affidavit in Support, ¶1]. He then tried to mail his claim by sending it through family members, but apparently an incomplete version reached the defendant, who rejected it for a lack of verification perhaps. [Ibid. ¶¶1 and 2]. From the context, it appears that the alleged wrongdoing by the mail room clerk occurred in 2008[2], when claimant returned to the custody of the New York State Department of Correctional Services (DOCS) and was received at Downstate, not when the incidents cited in the claim in September 2004, September 2005 and October 2005 are broadly alleged to have occurred. Whatever may have happened in 2008, such actions did not prevent claimant from serving and filing timely claims in 2004 and 2005. Accordingly, no reasonable excuse has been offered.

An excuse, however, is but one of the factors to be considered, and its presence or absence does not conclude whether late claim relief is afforded. Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, supra.

In the Statement of Facts appended to Mr. Dolberry’s moving papers, the first thirteen (13) pages give the history of altercations with a fellow inmate, Wilson, in 2004, and contest his own conviction during disciplinary proceedings. Pages fourteen (14) and fifteen (15) of his Statement of Facts mention another fight with a different inmate, Trifaro, that may have occurred on September 4, 2005, and might have resulted in his being “cut”. This alleged assault is referenced elsewhere in the Statement of Facts, and is also allegedly connected to his open parole date being suspended. [Statement of Facts, pages 26-28]. There are complaints about failed grievances interwoven in succeeding pages, as well as complaints alleging mail room failures in August, September and October 2004 concerning other legal actions including a federal case and an appeal, perhaps, of his criminal conviction. [Statement of Facts, pages 15-19]. Additional allegations in the Statement of Facts concern a September 4, 2005 fight as well, and claimant’s alleged attempts to obtain the intervention of the Inspector General’s office with regard to the misconduct of an unnamed correction officer in planting a weapon, that was then used by Trifaro to cut claimant, and his other alleged attempts to obtain assistance, and his disagreements with the resolution of his complaints, and failures to transfer him to different housing locations in October 2005. [Statement of Facts, pages 20-26]. “On going harassment” by the State of New York is alleged, as well as retaliation, failure to investigate, and loss of his original parole date, and failure to provide medical care after an October 2004 fight and a September 2005 fight. [Statement of Facts, pages 28-31].

The closely related factors of notice, opportunity to investigate and prejudice to the State, are considered together. Because of the rambling narrative presented, it cannot be discerned beyond generality when the various causes of action claimant is asserting accrued. Again generally, there may have been inmate on inmate assaults in September 2004, September 2005 and October 2005. Thus, it has been three and four years since those alleged incidents occurred. Other than his own narrative - not in the proposed claim but in the attachments - Mr. Dolberry has submitted nothing to demonstrate that the defendant had any prior notice of the incidents that he is attempting to make the basis of a claim. As noted, the only memoranda supplied concern his interaction with DOCS in 2008. No contemporaneous misbehavior reports are attached nor are disciplinary results or medical records. On balance, the State’s ability to investigate is clearly impeded to its prejudice by the passage of time in this case. Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two and one-half years from date of accrual).

As to an alternative remedy, claimant may have a federal claim[3], given the allegations of lack of access to a law library, or may also have a right to bring a special proceeding pursuant to Article 78 of the Civil Practice Law and Rules. Notably, causes of action for deprivation of procedural due process, or access to a law library [see, Jacobs v State of New York, 193 Misc 2d 413 (Ct Cl 2002)], may not be brought in the Court of Claims. A remedy, if any, would lie either in federal court for what could be perceived to be violations of federal constitutional protections [see generally 42 USC § 1983]; or in an Article 78 proceeding for judicial review of the administrative determinations he complains of. See generally Civil Practice Law and Rules §7801 et seq.

The appearance of merit is viewed as the most important factor to consider in an application to serve and file a late claim. When the proposed claim asserts a cause of action requiring an expert opinion in order to be established, an affidavit of merit from a qualified expert should be included with the application. Perez v State of New York, 293 AD2d 918 (3d Dept 2002).[4] Thus any claims of inadequate medical care in the form of medical malpractice may only be established by expert testimony. No expert’s affidavit is appended to claimant’s moving papers to substantiate such a cause of action.

With regard to the other potential causes of action asserted so generally, the assertions set forth in the proposed claim do not adequately provide the information required for the contents of a claim as to “the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained . . .” Court of Claims Act §11(b).

Certainly the State owes a duty to protect inmates from reasonably foreseeable attacks by fellow inmates. See Sanchez v State of New York, 99 NY2d 247, 252 (2002); Colon v State of New York, 209 AD2d 842, 843 (3d Dept 1994). In order to establish liability on the State’s part, an inmate claimant must allege and prove that the State knew or should have known that there was a risk of harm to the claimant that was reasonably foreseeable and inadequately addressed. Sanchez v State of New York, supra. The court must look to see if the actions taken by the State were reasonable under the circumstances. Other than very vague allegations that claimant himself advised personnel that one “bunky” [cell mate] was arguing with him, claimant’s own anticipatory initiation of fights (i.e.: he was the aggressor), purported mental health issues of his alleged assailant(s), and what appears to be a history of getting into fights himself, claimant has not established the appearance of merit for late claim purposes to a cause of action alleging negligent failure to protect. While claimant’s burden on the motion is to establish that the claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists [see e.g. Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1(Ct Cl 1977)], the problems with the lack of a time frame militate against establishing such burden, since claimant has not asserted what the defendant knew or should have known, and how it could have acted reasonably in response.

As to the cause of action premised upon the alleged interference with claimant’s access to the law library or due process violations, as noted above a cause of action based upon a violation of the Federal Constitution must be pursued pursuant to 42 USC § 1983 in a different forum. With regard to any constitutional tort claims, only in limited circumstances - not present here - may a claim asserting violations of the New York State Constitution be heard in the Court of Claims. See Brown v State of New York, 89 NY2d 172 (1996).

Accordingly, because claimant did not establish that the motion was timely served, and thus that the causes of action are not time-barred, and also after carefully considering the substantive factors under Court of Claims Act §10(6), claimant’s motion for permission to serve and file a late claim is in all respects denied.

December 15, 2008
White Plains, New York

Judge of the Court of Claims

[1]. It is noted that while service of a claim or notice of intention upon the defendant by certified mail, return receipt requested is complete upon receipt by the attorney general’s office [Court of Claims Act §11(a)(i)], service of a motion for late claim relief is complete upon mailing. See Civil Practice Law and Rules §2103(b)(2).
[2]. Claimant has attached a photocopy of a note he sent to the mail room staff that is stamped “received” by DOCS on February 22, 2008. The note indicates that he arrived at Downstate in January 2008 and talks about (apparently) the same failures of the mail room clerk to forward his mail that are mentioned in the affidavit in support of the motion. Indeed, other attachments including an inmate personal property disposal form, an acknowledgment of receipt of mail by the superintendent, a photocopy of an envelope from a lawyer referral organization with a letter from same, a misbehavior report and its resolution, a handwritten complaint about harassment and mail issues, and a completed personal property inmate claim form are all dated January and February 2008. Apparently responsive correspondence from the director of the inmate grievance program at Downstate is dated March 13, 2008 and May 19, 2008.
[3]. Indeed, he mentions that he brought some type of federal action in correspondence to this court. [See Letter to court received November 21, 2008].
[4]. In proposed claim alleging that the misdiagnosis and inadequate treatment of a cancerous ulceration on his leg resulted in deformity and permanent injury, medical records alone insufficient in support of late claim motion. Expert medical evidence was required to show that the alleged inadequate treatment of ulcer was inadequate in the first instance, and that the ulcer was cancerous when examined, and how such failures are linked to the damages suffered.