New York State Court of Claims

New York State Court of Claims

TERRENCE v. STATE OF NEW YORK, #2008-039-103, , Motion No. M-75432


Synopsis


Movant’s motion for permission to file a late claim is denied. The absence of a proposed claim considered in conjunction with the complete lack of information in movant’s supporting affidavit from which to determine whether the claim has the appearance of merit, and the lack of sufficient proof to establish that movant’s delay in filing a claim was excusable necessitates denial of the application.

Case Information

UID:
2008-039-103
Claimant(s):
GILL TERRENCE, 92-A-7521
Claimant short name:
TERRENCE
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-75432
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Gill Terrence, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Glenn KingAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 20, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Gill Terrence (hereinafter movant) seeks an order from the Court granting him permission to file a late claim. 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]).
Based upon the Court’s review of the notice of intention to file a claim, which is attached as an exhibit to defendant’s opposing affidavit, movant allegedly sustained injuries when he was assaulted by prison officials on February 17, 2008. Pursuant to Court of Claims Act §§ 10 (3-b) and 11, movant was required to file with the Court and serve upon the attorney general a claim by certified mail, return receipt requested within 90 days after the accrual of the claim, or by May 19, 2008, unless, “within such time [he] serve[d] upon the attorney general [by certified mail, return receipt requested] a written notice of intention to file a claim . . . in which event the claim [was to] be served upon the attorney general within one year after the accrual of such claim.”

Here, the State (hereinafter defendant) asserts that it received copies of movant’s notice of intention to file a claim on three separate occasions prior to expiration of the requisite 90-day period. There appears to be no dispute, however, that on each occasion the notice of intention to file a claim was served by regular mail, rather than by certified mail, return receipt requested as required by Court of Claims Act § 11, thereby prompting the instant application for permission to file a late claim.

In support of his motion, movant attributes the failure to file his claim in a timely manner to the failure of prison officials to mail his notice of intention to file a claim by certified mail, return receipt requested. More specifically, movant alleges that prison officials erroneously sent by certified mail, return receipt requested a letter that he addressed to Prisoners’ Legal Services, rather than mailing his notice of intention to file a claim to the attorney general by certified mail, return receipt requested. Movant further states that he filed an inmate grievance and an appeal to the superintendent as a result of the alleged mailing error. Movant alleges that, in the interim, he mailed a second notice of intention to file a claim to the attorney general without certification because the inmate accounts office at the facility refused to encumber his account for the amount of postage needed to send the document by certified mail, return receipt requested. Movant does not offer any documentation to support the foregoing assertions.

In response to the application, defendant concedes that the time to seek permission to file a late claim pursuant to Court of Claims Act § 10 (6) has not expired, and that it had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim. Defendant further concedes that it will not suffer substantial prejudice if movant is permitted to file a late claim. Defendant opposes the application on the grounds that movant has not set forth an adequate excuse for his failure to file the claim in a timely manner, and that movant failed to establish that the claim appears to be meritorious.

The Court concludes that movant’s application for permission to file a late claim must be denied. Notably, the application does not include a proposed claim, as is required, nor does movant’s supporting affidavit contain any information regarding the nature of the claim (see Court of Claims Act § 10 [6]). The absence of a proposed claim (see Pino v State of New York, Ct Cl February 27, 2006, UID #2006-015-073, Motion No. M-71048, Collins J.; Larocco v State of New York, Ct Cl May 24, 2004, UID #2004-009-33, Motion No. M-68085, Midey, J.; Grant v State of New York, Ct Cl September 6, 2000, UID #2000-001-049, Motion No. M-61919, Read, P.J.), considered in conjunction with the complete lack of information in movant’s supporting affidavit from which to determine “whether the claim has the appearance of merit” (Savino v State of New York, 199 AD2d 254, 254-255 [1993]; see also Court of Claims § 10 [6]), and the lack of sufficient proof to establish that movant’s delay in filing a claim was excusable, necessitates denial of movant’s application for leave to file a late claim.

Accordingly, it is hereby ordered that M-75432 is denied.



November 20, 2008
Albany, New York

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


Papers Considered
:
  1. Cover letter dated July 28, 2008 by Gill Terrence;
  2. Affidavit in support of motion for permission to file a late claim by Gill Terrence, sworn to on July 28, 2008;
  3. Affidavit in opposition to claimant’s motion to file a late claim by Glenn King, AAG, sworn to on September 11, 2008 with exhibits; and
  4. Reply letter dated September 15, 2008 by Gill Terrence.