New York State Court of Claims

New York State Court of Claims

CALLOWAY v. THE STATE OF NEW YORK, #2008-041-049, Claim No. None, Motion No. M-75754


Synopsis

Application to file late claim alleging that corrections officers assaulted claimant is granted as uncontested allegations provide cause to believe a valid cause of action exists and the defendant has not been substantially prejudiced by delay in prosecuting the claim.

Case Information

UID:
2008-041-049
Claimant(s):
SAMUEL CALLOWAY
Claimant short name:
CALLOWAY
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-75754
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
SAMUEL CALLOWAYPro Se
Defendant’s attorney:
NONE
Third-party defendant’s attorney:

Signature date:
December 9, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


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 damages.

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 that:
“[T]he court shall 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.”
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 [1982]).

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 [1991]).

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 [3]), 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 condition.

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 of Claims.

December 9, 2008
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:

  1. Notice of Motion, filed October 27, 2008;
  2. Affidavit of Samuel Calloway, sworn to October 16, 2008, and annexed exhibits.