New York State Court of Claims

New York State Court of Claims

FECU v. THE STATE OF NEW YORK, #2009-029-067, Claim No. None, Motion No. M-76974


Inmate granted permission to file a late claim alleging improper excessive confinement. Questions of fact whether Arteaga immunity applies. Motion opposed only by affirmation of counsel.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Elyse J. Angelico, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 23, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks permission to file a late claim alleging 26 days of wrongful confinement in the Special Housing Unit at Bedford Hills Correctional Facility. Claimant alleges that on December 22, 2008 she was charged with a disciplinary violation after having been unable to provide a sample for urinalysis for three hours, which claimant attributes to the correction officer forcing her to attempt to urinate in a position that prevented her from urinating and which was not in accordance with State correctional guidelines. Claimant alleges further that she was convicted of the violation at a January 9, 2009 hearing, that she appealed the conviction and that her conviction was reversed after she served 26 days in special housing.

Opposing the motion, defendant initially notes that claimant served a notice of intention to file a claim on the Attorney General on March 24, 2009, but service of that document was not effective to extend claimant’s time to serve and file a claim because it was not verified and it was rejected and returned to claimant the same date with due and proper notice that defendant was electing to treat the document as a nullity (see Lepkowski v State of New York, 1 NY3d 201). Thus, relief pursuant to Court of Claims Act Section 10(6) is necessary.

The statute authorizes the court to permit the filing of a late claim, upon consideration of all relevant factors, including whether claimant’s delay was excusable, whether defendant had timely notice of and the opportunity to investigate the pertinent allegations, whether defendant would suffer substantial prejudice should the motion be granted, whether the proposed claim has the appearance of merit and whether claimant has an alternate remedy.

Although defendant is correct in contending that claimant has not presented an adequate excuse for failing to serve a proper notice of intention or serve and file a claim within 90 days of accrual, the balance of the statutory factors weigh clearly in favor of granting claimant’s application.

The proposed claim accrued on January 27, 2009 upon claimant’s release from special housing. Claimant’s initial motion papers [1] seeking permission to file a late claim were received by defense counsel on April 29, 2009, two days after expiration of the statutory 90-day filing period. Defendant does not allege that it did not have timely notice of and the opportunity to investigate the factual allegations underlying the claim, nor does it maintain that it would suffer any prejudice should the motion be granted or that claimant has an alternate remedy available. Other than correctly pointing out that claimant’s delay in properly proceeding was not excusable, defendant’s opposition is based solely on the contention that the proposed claim lacks the appearance of merit because defendant is entitled to absolute immunity pursuant to Arteaga v State of New York (72 NY2d 212).

In Arteaga, the Court of Appeals held that where DOCS officials “act under the authority of and in full compliance with the governing statutes and regulations (Correction Law §§ 112, 137; 7 NYCRR parts 250-254), their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity,” (72 NY2d 212, 214) but cautioned that when correction officials act beyond their authority or “in violation of the governing rules and regulations,” actions of correction personnel in physically abusing inmates “or in confining them without granting a hearing or other required due process safeguard (see, 7 NYCRR 125-5.1; parts 252-254) would not receive immunity” (id., 220, 221).

“Facts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits” (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). Defendant opposes the current motion with only an attorney’s affirmation, submitting neither an affidavit from someone with knowledge nor documentary evidence indicating the reason for the reversal of claimant’s disciplinary conviction. Based on the papers before the court, whether the Arteaga immunity applies is an open question.

A proposed claim has the appearance of merit for late filing purposes if it is not patently groundless, frivolous or legally defective and there is reason to believe a cause of action may exist (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). As the Second Department has stated, in addressing the quantum of proof necessary to satisfy the apparent merit requirement of § 10(6), “the denial of a motion to file a late claim may . . . constitute an improvident exercise of discretion where the delay is minimal, the State suffered no prejudice, and there may be issues of fact as to the merits of the claim (see Matter of Morales v State of New York, 292 AD2d 455, 456 [2002]; Marcus v State of New York, 172 AD2d 724, 725 [1991])” (Jomarron v State of New York, 23 AD3d 527, 528). That quotation accurately describes the situation before the court.

Accordingly, the motion is granted. Claimant may serve (by certified mail, return receipt requested) and file her claim (i.e., the proposed claim submitted as Exhibit B to the motion, augmented by a verification page), within 40 days of the filing date of this decision and order, in accordance with all of the relevant requirements of the Court of Claims Act and the Uniform Rules for the Court of Claims, including payment of the $50 filing fee or submission of an application for reduction of the fee.

September 23, 2009
White Plains, New York

Judge of the Court of Claims

Papers considered:

Notice of Motion and Annexed Exhibits

Affirmation in Opposition and Annexed Exhibits

[1].These motion papers were rejected by the Clerk of the Court because claimant did not file an affidavit of service and for other technical reasons. The papers were re-served, and refiled, in July.