New York State Court of Claims

New York State Court of Claims

SNYPE v. THE STATE OF NEW YORK, #2008-040-067, Claim No. NONE, Motion No. M-75355


Synopsis


Court of Claims Act § 10(6) motion denied.

Case Information

UID:
2008-040-067
Claimant(s):
CALVIN SNYPE
Claimant short name:
SNYPE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-75355
Cross-motion number(s):

Judge:
CHRISTOPHER J. MCCARTHY
Claimant’s attorney:
Calvin Snype, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Thomas R. Monjeau, Esq., AAG
Third-party defendant’s attorney:

Signature date:
October 10, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, the application of pro se Movant, Calvin Snype, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is denied.


The Proposed Claim, attached to the motion papers, asserts that, on May 17, 2007, Movant was incarcerated at Bare Hill Correctional Facility in Malone, New York; that at approximately 10:55 p.m., Movant was injured when he was assaulted by another inmate in the E-2 Dormitory laundry room. It is alleged that the attack took place in front of a correction officer and the officer did nothing to prevent the attack.

Pursuant to Court of Claims Act § 10(6), it is within the Court’s discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Since the Proposed Claim asserts a cause of action for negligence (CPLR § 214[5]), a three-year Statute of Limitations applies and the motion is properly before the Court whether the Claim accrued on (1) May 17, 2007, as the Proposed Claim asserts; or (2) May 17, 2006, as the Notice of Intention to File a Claim, dated August 22, 2006 , which Movant served upon Defendant, asserts (Ex. B attached to Affirmation in Opposition of Thomas R. Monjeau, Esq.).

Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

The first factor to be considered is whether the delay in filing the claim was excusable. The Court finds Movant’s proffered excuse for the delay in timely filing and serving the claim – lack of knowledge of the Court’s filing requirements – is not a reasonable excuse (Modern Transfer Co. v State of New York, 37 AD2d 756 [4th Dept 1971]; Fowx v State of New York, 12 Misc 3d 1184[A] [Ct Cl 2006]). However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., supra at 981).

The next three factors to be addressed – whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant – are interrelated and will be considered together. Defendant neither claims lack of notice nor lack of opportunity to investigate. It does assert that it will be substantially prejudiced by a delay in filing a claim. Defendant’s argument is unpersuasive, however. The State cannot use its silence as a shield against an allegation that it had notice of the essential facts constituting the claim (Cole v State of New York, 64 AD2d 1023, 1024 [4th Dept 1978]). These factors, therefore, weigh in Movant’s favor.

The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does not have any alternate remedy.

The sixth, final and perhaps most important factor to be considered is whether the Proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967, 968 [Ct Cl 1982]; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440 [Ct Cl 1979]). It is Movant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the Proposed Claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).

At this stage of the proceeding, it should be noted, the Court generally takes the factual allegations of a movant as true, however, in this instance the factual allegations in the Proposed Claim are contradicted by the factual allegations contained in the Notice of Intention served upon Defendant. The Notice of Intention (Ex. B attached to Monjeau Affirmation), which is dated August 22, 2006, alleges that Movant was assaulted by another inmate, who struck Movant in the head with a broom handle at approximately 10:55 p.m. in the E-2 dormitory laundry room at Bare Hill on May 17, 2006. The Proposed Claim asserts that Movant was assaulted by the same inmate, who struck Movant in the head with a broom handle at approximately 10:55 p.m. in the E-2 dormitory laundry room at Bare Hill on May 17, 2007. It is hard for the Court to believe that the same inmate assaulted Movant at the same place, at the same time, in the same manner, on the same date, in consecutive years. It appears that the Proposed Claim contains incorrect dates. Thus, in reading the Proposed Claim there is reasonable cause to believe that a valid cause of action does not exist, as alleged. In addition, the allegation of negligence is conclusory in nature without any supporting facts (Witko v State of New York, 212 AD2d 889, 891 [3d Dept 1995]; Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).

The Court concludes that the interests of justice would be best served by permitting Movant to reapply for permission to file a late claim, if he so desires, provided that on such re-application, he establishes that his cause of action has the appearance of merit.

Accordingly, it is ORDERED that the motion be denied without prejudice.


October 10, 2008
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered on Movant’s request for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6):

Papers Numbered


Notice of Motion, Affidavit in Support,
Proposed Claim 1

Affirmation in Opposition & Exhibits attached 2