New York State Court of Claims

New York State Court of Claims

MANN v. THE STATE OF NEW YORK, THE NEW YORK STATE DEPARTMENT OF CORRECTIONS, NEW YORK STATE CORRECTION’S OFFICER “JOHN” NOBILE whose first name being unknown and fictitious, NEW YORK STATE CORRECTION’S OFFICER “JOHN” ZUKOWSKI, whose first name being unknown and fictitious, and CAPTAIN “JOHN” CHAPIN whose first name being unknown and fictitious, #2008-042-510, Claim No. NONE, Motion No. M-74151


Synopsis


This motion is brought before the court by claimant for permission to file a late claim. The claimant brings this action against the State of New York, the New York State Department of Corrections, and three New York State Corrections Officers, pursuant to Court of Claims Act Section 10 (6). The court finds that the motion is denied with regard to all of the named defendants other than the State of New York. The court is satisfied that the claimant has met the statutory criteria for filing the late claim against the State of New York and claimant’s motion for permission to serve and file a late claim against the defendant State of New York is granted.

Case Information

UID:
2008-042-510
Claimant(s):
HAROLD J. MANN
Claimant short name:
MANN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK, THE NEW YORK STATE DEPARTMENT OF CORRECTIONS, NEW YORK STATE CORRECTION’S OFFICER “JOHN” NOBILE whose first name being unknown and fictitious, NEW YORK STATE CORRECTION’S OFFICER “JOHN” ZUKOWSKI, whose first name being unknown and fictitious, and CAPTAIN “JOHN” CHAPIN whose first name being unknown and fictitious
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-74151
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
CHAPMAN ZARANSKY, L.L.P.
OF COUNSEL TO JAY H. TANENBAUMBy: MICHAEL B. ZARANSKY, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 29, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This matter comes before the court on a motion by claimant for permission to late file a claim against the State of New York, the New York State Department of Corrections [sic], and New York State Corrections [sic] Officers Nobile, Zukowski, and Chapin, pursuant to Court of Claims Act § 10 (6).

The Attorney General opposes the motion and contends that the claimant’s application fails to meet certain statutory criteria for the filing of a late claim.

The court has considered the following papers:
  1. Notice of Motion, filed October 29, 2007
  2. Affidavit of Harold J. Mann, sworn to October 23, 2007
  3. Affirmation of Michael B. Zaransky, Esq., dated October 23, 2007
  4. Exhibits "A" and "B", annexed to the moving papers
  5. Opposition affirmation of Joel L. Marmelstein, Esq., dated March 4, 2008
  6. Reply affirmation of Michael B. Zaransky, dated March 7, 2008
  7. Exhibits "A" and "B", annexed to the reply affirmation
______________________________________________


The proposed claim and supporting affidavit allege that on April 24, 2007 claimant, while an inmate at the Oneida Correctional Facility, was assaulted and beaten by correction officers Zukowski and Nobile and, as a result, seriously injured. Claimant further alleges that thereafter, claimant was wrongfully punished and isolated and that correction officer Chapin also participated in the post-beating wrongful actions taken against claimant, acted to shield the other two officers from discipline, and acted to intimidate claimant. Claimant alleges that the defendant State of New York is liable for the acts of these employees and is also liable for its own negligent hiring, training, retention, and supervision of its employees.

At the outset, the motion is denied with regard to all of the named defendants other than the State of New York. The Court of Claims only has such subject matter jurisdiction as has been conferred by statute. And, generally speaking, the court’s subject matter jurisdiction is in actions against the State and certain designated agencies (Court of Claims Act § 9). The New York State Department of Correctional Services is a department of the State of New York, it is not an independent agency. As a subdivision of the State of New York, it does not have an independent legal existence apart from the State and is not a proper defendant. Likewise, the Court of Claims lacks subject matter jurisdiction over the employees individually; the only proper party defendant is the “State of New York”, not the department and individual employees.

Court of Claims Act § 10 (6) provides, in relevant part, that:

[i]n determining whether to permit the [late] filing of a claim . . .,

the 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.


The presence or absence of any one factor is not dispositive in the court’s consideration of a late claim motion. (See Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979; Rice v State of New York, UID No. 2006-028-598, Claim No. NONE, Motion No. M-71150, October 18, 2006, Sise, P.J.). Additionally, the court is afforded broad discretion in its determination and consideration of the statutory factors. Matter of Gonzalez v State of New York, 299 AD2d 675; Doe v State of New York, UID No. 2004-028-512, Claim No. NONE, Motion No. M-67159, March 10, 2004, Sise, J.

EXCUSABLE DELAY
Claimant’s affidavit states that subsequent to the beating incident on April 24, 2007 he was taken to a hospital, then moved to the medical ward at Cayuga Correctional Facility, and then moved into solitary confinement at Auburn Correctional Facility for more than two months. Claimant further states that he was moved “quite a bit” thereafter, began treating with mental health personnel at Marcy and Attica, and was ultimately released on August 30, 2007. He argues that his time in solitary prevented him access to the law library and to individuals who could help protect his rights, and that his various reassignments were also part of an effort on the part of correction employees to ensure that he did not speak with an attorney in a timely fashion. Defendant argues that claimant’s placements within a SHU (Special Housing Unit) would not have prevented claimant access to legal representation or the ability to serve a notice of intention to file claim or a claim, and that in any event, lack of access to a law library is an insufficient excuse.

While these facts, as alleged are troubling, the court finds that, legally speaking, this factor does not weigh in claimant’s favor.

NOTICE, OPPORTUNITY TO INVESTIGATE AND PREJUDICE
In its opposition to this motion, defendant acknowledges that “[d]efendant will not contend that it was without notice, an opportunity to investigate or will be prejudiced by granting of the motion.”

In light of the foregoing, these three factors favor the claimant and present no obstacle to the claimant’s requested relief.

MERITORIOUS CLAIM
This factor is often considered the most decisive, since “it would be a futile gesture to permit a claimant to file a claim which is legally defective and thus subject it to immediate dismissal” (Terrell v Green Haven Correctional Facility, Ct Cl, June 14, 1977, Rossetti, J.; see Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 9).

In this case defendant does not contend that the claim is without merit, and the court itself is satisfied, based upon the moving papers, that the claim appears to be meritorious.

This factor favors the claimant.

ALTERNATIVE REMEDY
Claimant would have potential alternative remedies directly against the individual officers, either in federal court, through a civil rights claim, as argued by the defendant, or in Supreme Court for the assault and battery.

This factor does not favor the claimant.

However, having weighed all of the statutory factors, the court is satisfied that the claimant has met the statutory criteria for the filing of a late claim as against the defendant State of New York. Accordingly, claimant’s motion for permission to serve and file a late claim as against defendant State of New York is hereby granted. The motion is denied as against the remaining named defendants. Claimant is directed to serve and file his claim within forty-five (45) days from the date of filing of this decision and order and in accordance with Court of Claims Act Sections 11 and 11-a.



April 29, 2008
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims