Claimant moves for “an extension of time . . . to file a late notice of
intention to file a claim.” The Court of Claims Act does not provide for
such relief and the Court will therefore treat the motion as an application for
permission to file a late claim pursuant to Court of Claims Act § 10 (6).
Defendant has not opposed the application. Claimant is an inmate at Clinton
Correctional Facility (Clinton). The proposed claim alleges that on July 4,
2008, claimant was assaulted by four (4) correction officers at Clinton
(including a “Sgt. Grimhan”) resulting in personal injuries and
Court of Claims Act § 10 (6) provides that the Court, upon application and
in its discretion, may permit the late filing and service of a claim “at
any time before an action asserting a like claim against a citizen of the state
would be barred under the provisions of article two of the civil practice law
and rules.” Claimant’s cause of action sounding in intentional
assault is not time-barred by CPLR § 215.
In determining the application, Court of Claims Act § 10 (6) provides
In reviewing a late claim application, “the Court of Claims is required
to consider, among other factors, those enumerated in Court of Claims Act §
10 (6), no one factor being controlling” (Matter of Donaldson v State
of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy
v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact,
“[n]othing in the statute makes the presence or absence of any one factor
determinative” (Bay Terrace Coop. Section IV, Inc. v New York State
Employees’ Retirement System Policemen's and Firemen's Retirement
System, 55 NY2d 979, 981 ).
Further, “it is well settled that the Court of Claims’ broad
discretion in this area should be disturbed only in the face of clear
abuse” (Calco v State of New York, 165 AD2d 117, 119 [3d Dept
1991], lv denied 78 NY2d 852 ).
Claimant seeks to excuse his brief delay in filing and serving the claim by
alleging “mental illness prior to this attack and as a result of his
demenished [sic] mental capacity and limitations.” Claimant offers no
proof of the claimed mental illness and therefore fails to state a reasonable
excuse for his failure to timely file the claim (see Matter of Best v
State of New York, 42 AD3d 699, 700-701 [3d Dept 2007]; Duffy, 264
AD2d at 912).
The record does not reveal whether defendant had notice of the essential facts
constituting the claim or whether defendant had an opportunity to investigate
the circumstances underlying the claim.
The Court finds that the relatively short period of time which elapsed between
accrual on July 4, 2008 and the filing of the application on October 27, 2008,
only twenty-five (25) days after expiration of the ninety-day period for filing
and service of a claim (see Court of Claims Act § 10 ), provide
defendant ample opportunity to timely investigate the claim as the “delay
was minimal and the respondent was not prejudiced thereby” (Hughes v
State of New York, 25 AD3d 800 [2d Dept 2006]). In this regard, it is
generally recognized that prejudice is more likely to result where a proposed
claim involves conditions (such as ice or snow) which are “transitory in
nature” Matter of Donaldson v State of New York, 167 AD2d 805, 806
[3d Dept 1990]). The proposed claim does not arise from a transitory
Claimant has no available alternative remedy.
Section 10 (6) requires that the proposed claim not be “patently
groundless, frivolous or legally defective, and [that] upon consideration of the
entire record, there is cause to believe that a valid cause of action
exists” (Rizzo v State of New York, 2 Misc 3d 829, 833-834 [Ct Cl
2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl
2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997];
Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl
1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]),
the court noted that a proposed claim offered in a section 10 (6) application
need only have “the appearance of merit.”
Defendant has not offered an affidavit disputing the factual allegations of the
proposed claim and the allegations are deemed true for purposes of this
application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept
1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).
The Court finds that the claim, alleging that defendant’s employees
intentionally assaulted claimant, is not patently without merit and that,
accepting the claimant’s allegations as true, provides cause to believe
that a cause of action exists.
Based upon a balancing of the factors set forth in section 10 (6), the Court
grants the motion and claimant is directed to file and serve his claim in
compliance with §§ 11 and 11-a of the Court of Claims Act within sixty
(60) days of the filing of this decision and order with the Clerk of the Court