|Claimant(s):||LUCIOUS McDANIELS JR.|
|Claimant short name:||McDANIELS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Law Office of Wadeedah Sheeheed, P.C.
By: Wadeedah Sheeheed, Esq.
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: Gwendolyn Hatcher, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||December 2, 2009|
|See also (multicaptioned case)|
Lucious McDaniels Jr. moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In his proposed claim, Mr. McDaniels alleges that on September 17, 2008, he was sentenced to 90 days in jail to run concurrently with his sentence on another case. He further alleges that an employee of the Office of Court Administration of the State of New York "negligently and erroneously marked the sentences to run consecutively," which resulted in claimant being held "approximately 15 days beyond the date he was supposed to be released."
In order to determine this motion, the Act sets forth six factors which are to be weighed(1) : whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious.
As to notice, McDaniels argues that the State was made aware of his claim within two weeks of accrual because when his expected date of release came and went, he contacted his father, who notified his attorney, who contacted the court and that "[a]fter being made aware of the error, over the next several days, State employees took necessary steps to investigate and correct the mistake . . ." In view of my conclusion below as to the merit, i.e., that claimant failed to demonstrate that he should have been released on October 13, 2008, or that any mistake was made, I cannot find that the State would have had notice in this case. However, no showing of prejudice has been made by defendant and there would be an opportunity to investigate in view of the likely existence of relevant paperwork.
As to an alternate remedy, it is apparent that the Court of Claims is the sole proper venue for this claim. With regard to excuse, claimant essentially argues that he was not aware of the requirements of the Court of Claims Act. This is not a valid excuse for the purposes of the Act. See, e.g., Matter of E.K. v State of New York, 235 AD2d 540 (2d Dept 1997), lv denied, 89 NY2d 815 (1997).
Finally, it must be determined whether the proposed claim appears meritorious. McDaniels states in his affidavit in support of this motion that on September 17, 2008, he was sentenced to 90 days in jail "under docket 2008KN005760(2010-8V-2008)" to run concurrently with another sentence under docket "2008QN032847." He further states that he was incarcerated until October 28, 2008, "approximately 15 days beyond the date I was supposed to be released . . . " Fifteen days before October 28, 2008 is October 13, 2008. Claimant submits no documentation on what his sentence under docket 2008QN032847 was, or to otherwise support his assertion that he should have been released on October 13, 2008. In fact, he submits a New York City Department of Correction "Verification of Incarceration" which does not have a docket number and which has an admission date of June 17, 2008 and a "projected discharge date" of December 12, 2008. See claimant's exhibit 4.
Claimant's assertion that "[a]n employee of the State of New York negligently and erroneously marked the sentences to run consecutively" is contradicted by the documents he attaches to his motion papers. Claimant's exhibit 3 includes the following notation dated September 17, 2008: "90 days jail to run concurrent w[ith] Queens [sentence]." Moreover, exhibit 5, entitled "Uniform Sentence & Commitment" specifically states that his sentence for Menacing 3 "shall run concurrently with Queens 2008QN032847."
In view of the foregoing, I cannot find that claimant meets the standard for merit set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11 (Ct Cl 1977): (i) the claim "must not be patently groundless, frivolous or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists." See also Sands v State of New York, 49 AD3d 444 (1st Dept 2008).
Accordingly, having reviewed the submissions and having considered the six factors(2) , IT IS ORDERED that motion no. M-77039 be denied.
December 2, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
1. See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 (1982); Scarver v State of New York, 233 AD2d 858 (4th Dept 1996).
2. The following were reviewed: claimant's notice of motion with affirmation in support, memorandum of law and exhibits 1 through 5; and defendant's affirmation in opposition.