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
). 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
When deciding whether to grant an application to file a late claim, the court is
required to consider
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,
“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 ).
“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). 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 ).
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
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 , lv
99 NY2d 589 ; 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
, 92 Misc 2d 1033, 1037-1038 ; Bommarito v State of
, 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.