New York State Court of Claims

New York State Court of Claims

Dozier v. STATE OF NEW YORK, #2008-039-066, , Motion No. M-74084


Synopsis


Movant’s application for permission to serve and file a late claim is denied. A proposed claim was not provided for the Court’s consideration and movant offered only his own affidavit in support of the application. Moreover, movant’s excuses for his delay in serving and filing a claim - that he was ignorant of the law and that his incarceration in a punitive segregation unit created an undue hardship in receiving prompt and competent legal assistance - are insufficient. Movant did not provide the Court with any records or documents related to his confinement, or any information relating to how such incarceration prevented him from commencing his claim.

Case Information

UID:
2008-039-066
Claimant(s):
LAVELL DOZIER
Claimant short name:
Dozier
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-74084
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Lavell Dozier, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Frederick H. McGown, IIIAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 14, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Lavell Dozier (hereinafter “movant”), an inmate at Upstate Correctional Facility in Malone, New York, seeks permission to serve and file a late claim pursuant to Court of Claims Act § 10 (6). In his papers, movant asserts that in April 2007, while incarcerated at Clinton Correctional Facility, he was “assaulted” by unidentified correction officers. He seeks permission to serve and file a late claim on the grounds that he was unaware of the relevant law and procedures, and that his incarceration in a punitive segregation unit precluded him from accessing legal assistance. Defendant opposes the motion.

It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). The Court’s denial of such an application will not be disturbed “where ‘the excuse offered for the delay is inadequate and the proposed claim is of questionable merit’” (id., quoting Matter of Perez v State of New York, 293 AD2d 918, 919 [2002]).

When deciding whether to grant an application to file a late claim, the court is required to consider
“among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy” (Court of Claims Act § 10 [6]).

Moreover, “as it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported the granting of the claimant’s motion,” the Court should first consider whether the claim has merit (Savino v State of New York, 199 AD2d 254, 255 [1993]).

“In order for a claim to ‘appear to be meritorious’. . . it must not be patently groundless, frivolous, or legally defective, and . . . the court must find, upon a consideration of the entire record . . . that there is reasonable cause to believe that a valid cause of action exists” (Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [1977]). “Most importantly, a proposed claim must be submitted with the motion for permission to serve and file a late claim” (Matter of Sanchez v State of New York, UID #2007-030-503, M-72462, Scuccimarra, J., January 11, 2007; see also Sears v State of New York, UID #2006-015-063, M-70820, Collins, J., January 19, 2006; Court of Claims Act §10[6]). Inclusion of the claim enables the court to consider whether the claim has merit by examining proposed causes of action and exhibits (see Dippolito v State of New York, 192 Misc 2d 395, 396-397 [2002]).

Here, no proposed claim has been submitted with the motion papers. Movant offers only his own affidavit alleging that he was assaulted on April 10, 2007 by unidentified correction officers. No incident report or other documentation of the alleged event is provided. On this ground alone, movant’s motion must be denied.

Even assuming that a meritorious claim for assault[1] could be construed from the submitted papers, movant’s excuse for his delay in filing a claim is unpersuasive. In his affidavit, movant attributes the delay to his ignorance of the law and his “incarceration in a punitive segregation unit which creates an undue hardship in receiving prompt and competent legal assistance.” It is well settled, however, that “ignorance of the law is not an acceptable explanation for the failure to serve a timely notice of claim” (Matter of Sandlin v State of New York, 294 AD2d 723, 724 [2002], lv dismissed 99 NY2d 589 [2003]; Ouziel v State of New York, 174 Misc 2d 900, 904 [Ct Cl 1997]). Moreover, movant’s incarceration, on its own, does not constitute a legal excuse for the delay (see Plate v State of New York, 92 Misc 2d 1033, 1037-1038 [1978]; Bommarito v State of New York, 35 AD2d 458, 459 [4th Dept 1971]). There must be some showing that the circumstances of his confinement prevented him from timely instituting a claim (id.). In the instant case, movant has provided no records or documents related to his confinement, or any information relating to how such incarceration prevented him from commencing his claim. Absent such proffer, the Court is unable to determine whether the movant has set forth a reasonable excuse for his delay.

For the reasons discussed above, the Court finds that movant’s motion to serve and file a late claim must be denied.

Accordingly, it is hereby ordered that M-74084 is hereby denied.



January 14, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:

  1. Notice of Motion to File Late Claim filed on October 12, 2007;
  1. Affidavit in Support of Motion to File Late Claim by Lavell Dozier, sworn to on October 9, 2007; and
  1. Affirmation in Opposition by Frederick H. McGown, III, AAG, dated October 31, 2007.

[1].Movant contends that he was “assaulted” by correction officers at Clinton Correctional Facility. Positing that assault is the cause of action movant alleges, his motion seeking permission to file a late claim is timely as the applicable statute of limitations is one year (see CPLR § 215[3]).