New York State Court of Claims

New York State Court of Claims

MUENCH v. THE STATE OF NEW YORK, #2008-032-103, Claim No. N/A, Motion No. M-74423


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:
Timothy Muench, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 30, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Movant’s proposed claim alleges that on August 3, 2007, he was assaulted by several Correction Officers at Coxsackie Correctional Facility. He alleges that two days earlier, he had collapsed as a result of severe back pain and was taken to the facility’s medical center. Although he was admitted to the primary care unit and examined by a physician, he claims that he was not treated for his condition. While in the primary care unit, he attempted to get attention but was told that he was being disruptive. On August 3, 2007 he was released to the mental health unit. Three Correction Officers were sent to escort movant out of the medical unit and, when he informed them that he could not walk, he alleges that they beat him extensively. His injuries from the beatings were treated and he was moved to a different facility.

The application for late claim relief is timely. In order to determine whether it 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 only that he was not aware of the short period in which a claim must be filed and served to proceed with an action in this Court. Inaction or ignorance of the requirements for commencing such an action does not provide an acceptable excuse for failing to comply with the time limitations of Court of Claims Act §10 (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]; Spickerman v State of New York, 85 AD2d 60, 61 [3d Dept 1982]). Accordingly, the Court finds that this factor weighs against the movant.

It does not appear that movant would have any other remedy available to him.

The factors of notice, opportunity to investigate and potential prejudice to the defendant are interrelated and are best considered together. Movant points to the fact that a number of State officials were present when these events occurred and that the matter was investigated in connection with a misbehavior report that was filed against him and with several institutional grievances that he commenced. He acknowledges, however, that the Department of Correctional Services (DOCS) did not perform an investigation of the events giving rise to the claim (Muench affidavit, ¶ 5).

It cannot be assumed the State had actual knowledge of the facts merely because it owned and
maintained a certain facility (Turner v State of New York, 40 AD2d 923 3d Dept 1972]). On the other hand, if a State inspector or other person "possessing supervisory authority to initiate an investigation" witnesses the events underlying a claim, it is usually accepted that the requirement of notice was satisfied (Witko v State of New York, 212 AD2d 889, 891 [3d Dept 1995]; Powell v State, 187 AD2d 848 [3d Dept 1992]). According to the proposed claim, the Deputy Superintendent of Security was called to the scene where the Correction Officers were attempting to remove movant from the medical facility and the alleged assault occurred. That fact, together with the inquiries necessary for the disciplinary hearing to be held and the grievances answered, establish that in this instance, there was adequate notice and both motivation and opportunity to investigate the underlying facts. Defendant would be no more prejudiced than movant if the claim were allowed.

Of the six enumerated factors set forth in §10(6), it is the appearance of merit which weighs most heavily, because it would be pointless to permit the filing of a claim that did not appear to be meritorious (see e.g. Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]. 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 1997]). Accepting the facts as alleged by movant to be true, at least for the purposes of this motion, it cannot be said that the proposed claim is patently groundless, frivolous, or legally defective.

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.

June 30, 2008
Albany, New York

Judge of the Court of Claims

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

1. Notice of Motion and Supporting Affidavit of Timothy Muench, pro se, with annexed Exhibit;

2. Affirmation in Opposition of Michael C. Rizzo, AAG.

Filed papers: None