New York State Court of Claims

New York State Court of Claims

YORK v. THE STATE OF NEW YORK, #2008-044-588, Claim No. None, Motion No. M-74960


Synopsis


Court granted motion for permission to late file claim for personal injuries allegedly received when a State Trooper stepped on his finger during execution of a search warrant.

Case Information

UID:
2008-044-588
Claimant(s):
SEAN YORK
Claimant short name:
YORK
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-74960
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
NORMAN M. BLOCK, P.C.BY: Norman M. Block, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Carol A Cocchiola, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 29, 2008
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant moves for permission to file and serve a late claim to recover for personal injuries allegedly received when a State Trooper stepped on his finger. Defendant opposes the motion.

The underlying claim arises out of the execution of a search warrant by the State Police on December 14, 2006. Claimant asserts that he was present in a neighbor’s residence when State Police Officers threw a flash grenade through a window and entered the residence to execute a search warrant. Claimant alleges that the officers ordered everyone “to lie on the floor with their arms up and out” (Proposed Claim ¶ 2). He contends that at some time during this operation, an unidentified trooper (the Trooper) threw someone on top of claimant, and that then the Trooper stood on the pinky finger of claimant’s left hand. Although claimant states that he tried to inform the Trooper that he was standing on claimant’s hand, the Trooper allegedly did not immediately move. As a result of the search, claimant was arrested and charged with violations of Penal Law §§ 220.03 and 221.05 (criminal possession of a controlled substance in the seventh degree and unlawful possession of marijuana, respectively).[1]

A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act

§ 10 [6]). Claimant argues that because the State Police had a duty to exercise reasonable care in executing the search warrant, the Trooper’s conduct in stepping on claimant’s finger was negligent, and this motion is timely. Conversely, defendant contends that even though claimant describes the conduct as “acts of [sic] omissions,” his allegations support only a cause of action for an intentional tort, and this motion brought more than one year after the incident is untimely.

Contrary to defendant’s argument, claimant has not asserted a cause of action for an intentional tort. Claimant has alleged neither excessive or unnecessary force during the course of an arrest, nor intentional, offensive contact which caused an unintended injury (see Smith v County of Erie, 295 AD2d 1010 [2002]; Mazzaferro v Albany Motel Enters., Inc., 127 AD2d 374 [1987]; Lee v State of New York, Ct Cl, Dec. 18, 2002, Patti, J., Claim No. None, Motion No. M-65575 [UID # 2002-013-039], affd for reasons stated below 6 AD3d 1198 [2004]), nor has he alleged that the Trooper intentionally stepped on his finger. Rather claimant appears to be asserting that before he was actually arrested and while the Trooper was dealing with a third party, the Trooper negligently stepped on claimant’s finger.

Because claimant seeks to assert a cause of action in negligence, the applicable statute of limitations is three years from the date of accrual (see CPLR 214 [5]). Claimant’s cause of action accrued on December 14, 2006, the date he was injured. Accordingly, this motion served on May 14, 2008 is timely (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2001]).

Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act

§ 10 (6) in determining a motion to permit a late filing of a claim are whether:

1) the delay in filing the claim was excusable;

2) defendant had notice of the essential facts constituting the claim;

3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;

5) 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 defendant; and

6) claimant has any other available remedy.

Claimant asserts that after his arrest, he gave a statement concerning the incident to Trooper Tom Watson, a personal acquaintance. Claimant further states that he met Trooper Watson a few days later and was informed that Watson was putting in the paperwork necessary to have claimant compensated for the injury and the medical bills paid. Claimant asserts that in reliance on Watson’s statement, his delay in filing and serving a claim was reasonable.

Claimant’s reliance on Watson’s representations that claimant would be compensated, in essence that a settlement would be reached, is not a reasonable excuse for the failure to timely file and serve a claim (Society of N.Y. Hosp. v State of New York, 21 AD2d 733 [1964]; lv denied 14 NY2d 490 [1964]; Utica v State of New York, Ct Cl, Nov. 1, 2004, Sise, P.J., Claim No. None, Motion No. M-68126 [UID # 2004-028-568]; Dobbert v State of New York, Ct Cl, Mar. 6, 2003, Collins, J., Claim No. None, Motion No. M-66046 [UID # 2003-015-318]). Accordingly, this factor weighs against claimant.

The three factors of notice of the essential facts, an opportunity to investigate, and the lack of substantial prejudice are frequently analyzed together because they involve similar considerations. Defendant concedes that the State had notice of the essential facts constituting the claim and an opportunity to investigate the underlying circumstances of the claim. Further, defendant has not advanced any argument that it might be prejudiced by allowing a claim to be filed and served at this time. These three factors weigh in favor of claimant.

Another factor to be considered is whether claimant has any other available remedy. Claimant’s injury was allegedly caused by the conduct of a State Trooper which occurred within the scope of his employment. Because defendant may be liable under a respondeat superior theory, the Court of Claims is the proper forum for resolution of this claim. This factor also weighs in claimant’s favor.

The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [1977]). In order to establish a meritorious claim, a claimant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199, 202-203 [1992]).

In order to set forth a cause of action in negligence, claimant must demonstrate that defendant owed him a duty, that the duty was breached, and that the breach proximately caused claimant’s injury (Kampff v Ulster Sanitation, 280 AD2d 797 [2001]; Murray v New York City Hous. Auth., 269 AD2d 288 [2000]). Claimant’s factual allegations that he was injured during the execution of a search warrant when the Trooper apparently accidentally stepped on and fractured the pinky finger of his left hand, are sufficient for the Court to find that the claim appears meritorious (see e.g. Mikel v City of Rochester, 265 AD2d 861 [1999] [where the plaintiff was shot and injured during the execution of a search when a police officer accidentally discharged his weapon as he slipped and fell]). Accordingly, this crucial factor of merit also weighs in claimant’s favor.

The Court finds that five of the six factors, including the most crucial factor of merit, weigh in claimant’s favor. Claimant’s motion for permission to late file a claim is therefore granted. Within 30 days of the date of filing of this Decision and Order in the Office of the Clerk of the Court, claimant shall file a claim containing the information required by Court of Claims Act § 11 (b) setting forth a cause of action in negligence, and shall serve a copy of it upon the Attorney General. Service and filing of the claim shall be performed pursuant to the strict requirements of the Court of Claims Act.


October 29, 2008
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion:

1) Notice of Motion filed on May 16, 2008; Affirmation of Norman M. Block, Esq., dated May 14, 2008; Affidavit of Sean York sworn to on May 12, 2008, and attached Exhibits A through C.

2) Affirmation in Opposition of Carol A. Cocchiola, Assistant Attorney General, dated August 6, 2008, and attached Exhibit A.


3) Affirmation of Norman M. Block, Esq. dated August 11, 2008.


[1]. These charges were apparently dismissed in satisfaction of his plea of guilty to a second charge of criminal possession of a controlled substance in the seventh degree (Penal Law § 220.03) resulting from another arrest on April 21, 2007.