New York State Court of Claims

New York State Court of Claims

QUICK v. STATE OF NEW YORK, #2008-045-006, Claim No. None, Motion No. M-74344


Synopsis



Case Information

UID:
2008-045-006
Claimant(s):
DESMOND QUICK
Claimant short name:
QUICK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-74344
Cross-motion number(s):

Judge:
GINA M. LOPEZ-SUMMA
Claimant’s attorney:
Desmond Quick, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 30, 2008
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered by the Court on this motion: Claimant’s Notice of Motion, Claimant’s Affidavit in Support with annexed documents and Defendant’s Affirmation in Opposition.

Claimant, Desmond Quick, a pro se inmate, has brought this motion seeking an order granting leave to file a late claim pursuant to Court of Claims Act (CCA) § 10(6). Defendant, the State of New York, has opposed claimant’s motion.

In the present application, claimant alleges that on or between June 27, 2007 and July 1, 2007, defendant’s agents escorted him to the observation cell in the hospital due to claimant’s mental health problems and thereafter assaulted him.

It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10(6) (Bay Terrace Cooperative Section IV, Inc. v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979 [1982]). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable, whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.

Claimant does not offer any legally acceptable excuse for the delay in the filing of his claim. However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). With respect to the remaining factors, defendant offers no opposition and concedes these factors.

Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10(6), the Court finds that the factors favor claimant’s application. Thus, the Court hereby grants claimant’s motion to file a late claim.

Accordingly, within sixty (60) days of the date this decision and order is filed, claimant shall file and serve the proposed claim[1] , together with a payment of the appropriate filing fee, pursuant to Court of Claims Act § § 11 and 11-a.


January 30, 2008
Hauppauge, New York

HON. GINA M. LOPEZ-SUMMA
Judge of the Court of Claims




[1]. Claimant’s proposed claim was titled “Late Claim for Damages.”