Late claim motion was denied where claimant failed to establish the merit of his excessive force claim, which together with the other required factors weighed against granting the motion .
|Claimant short name:||LEE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Kareem Lee, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 5, 2009|
|See also (multicaptioned case)|
Movant, an inmate proceeding pro se, seeks late claim relief pursuant to Court of Claims Act § 10 (6).
The proposed claim alleges the following:
"2. On 12.24.08 at approximately 8:55 A.M. while being escorted by C.O. King Wilcox to an hospital call-out upon being keeplock, I was physically assaulted by Officer King Wilcox who was my call-out escort officer. On the same above date, upon retaliation of a C.O. partner of Department of Corrections Officer John Smith conducted a cell pack-up of Inmate Kareem Lee property. At 10:15 A.M. to be transported to S.H.U. Confinement. On 12.31.08 Inmate Lee # 04A4085 finally received his property seven days later from the same officer who conducted the cell pack-up. Upon receiving my property several items were missing and destroyed with shampoo, water, dried urine, and many other different substances all conducted by the staff members of Department of Corrections. Lost property are legal work, letters, pictures, soaps deorderants [sic], shampoos, toothpastes, lotions, Newports, tops, stamps, reading books, magazines, radio. Damage are sweaters, T-shirts, dress shirts which are all listed and filed within claim."
Movant alleges the claim accrued on December 24, 2008 at Great Meadow Correctional Facility.
As a threshold matter the Court will first address the State's contention that the instant motion should be denied since it was never served with a copy of the motion. The State asserts in this regard that the first notice it received of the pending motion was an acknowledgment letter from the Clerk's office. In support of this contention the State proffered an affidavit from Janet A. Barringer, Senior Clerk in the Albany Office of the Attorney General, who states that based upon her search of the records of the Office of the Attorney General she found "no record that the Motion to Late File in this matter was ever served on the Attorney General." Notwithstanding Ms. Barringer's contention, attached to the motion is an Affidavit of Service in which the movant avers that the motion was served on the Office of the Attorney General on May 5, 2009. There appears no need to resolve this conflict, however, as the State addressed the merits of the motion and, for the reasons set forth below, the Court finds that the movant failed to establish his entitlement to late claim relief.
With respect to the allegation that the movant's property was lost or damaged following his transfer to the special housing unit, this proposed cause of action sounds in bailment and any claim arising therefrom was required to be filed within 120 days following the date on which the inmate exhausted his administrative remedy (Court of Claims Act § 10 ). Late claim relief is not available for such causes of action (Roberts v State of New York, 11 AD3d 1000 ).
As to the movant's remaining allegations of an assault by Correction Officer King Wilcox on December 24, 2008, subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following 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 first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of Section 10 requires that a motion to file a late claim be made "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." The applicable Statute of Limitations relative to the alleged assault by C.O. Wilcox is one year (Smiley v North Gen. Hosp., 59 AD3d 179 ; Wrase v Bosco, 271 AD2d 440 ; CPLR 215 ). The instant application is therefore timely with respect to this allegation.
Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 ). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 ). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 ).
In his affidavit in support of the motion claimant asserts that he failed to timely serve and file his claim due to "ignorance of the law" and his "incarceration in a punitive segregation unit." Ignorance of the law is not an acceptable excuse for the failure to timely serve and file a claim (Olsen v State of New York, 45 AD3d 824 ; Anderson v City Univ. of N.Y. at Queens Coll., 8 AD3d 413 ). Moreover, movant failed to establish the dates of his segregation or how his confinement in punitive segregation affected his ability to timely file the claim. Under these circumstances, the Court does not find the excuse advanced by the movant for his failure to timely serve and file the claim reasonable.
Movant failed to address the issues of notice, opportunity to investigate and prejudice to the State. Movant's allegation that his injuries were the result of intentional conduct, standing alone, does not establish that the State had "notice of the essential facts constituting the claim" as required by Court of Claims Act § 10 (6) (compare Matter of Felice v Eastport/South Manor Cent. School Dist., 50 AD3d 138  [knowledge of the accident and injury did not amount to actual knowledge of the essential facts constituting the claim]). Absent some evidentiary showing that the State was aware of the movant's alleged injury and the general facts surrounding the incident, the Court cannot conclude that the State had notice and an opportunity to investigate the circumstances underlying the claim. These factors weigh against granting late claim relief.
With respect to the required showing of merit, the claim is sufficiently established if the claimant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 ; Fowx v State of New York, 12 Misc 3d 1184 (A) ). Movant asserts without any evidentiary support that he was assaulted by a correction officer. The use of force is permitted "[w]hen any inmate ... shall offer violence to any person . . . or resist or disobey any lawful direction . . ." (Correction Law § 137). The DOCS' regulation governing the use of force makes clear that "[w]here it is necessary to use physical force, only such degree of force as is reasonably required shall be used" (7 NYCRR § 251-1.2[b]). A proper assessment of the degree of force necessary requires consideration of the particular circumstances confronting the officers at the time the force was applied (Koeiman v City of New York, 36 AD3d 451 ; Lewis v State of New York, 223 AD2d 800 ; Arnold v State of New York, 108 AD2d 1021 , appeal dismissed 65 NY2d 723 ). Here, movant failed to allege the circumstances under which the alleged use of force occurred or otherwise proffer any evidentiary support for the allegation that the force used constituted an "assault." As conclusory allegations in a claim are insufficient to establish a meritorious cause of action, movant failed to establish the required showing of merit (see Langner v State of New York, 65 AD3d 780, 783-784 ; Olsen v State of New York, supra; Witko v State of New York, 212 AD2d 889 ).
With respect to the availability of an alternative remedy, it appears movant could assert an eighth amendment claim for excessive force against the correction officer in his individual capacity in either state or federal court pursuant to 42 USC §1983 (see generally Haywood v Drown, ___US___, 129 S Ct 2108 ; see also Scott v Coughlin, 344 F3d 282 [2d Cir 2003]).
As all of the statutory factors set forth above weigh against granting late claim relief, the motion is denied.
October 5, 2009
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: