New York State Court of Claims

New York State Court of Claims

CALVIN v. THE STATE OF NEW YORK, #2009-030-528, Claim No. NONE, Motion No. M-76387


Late claim motion asserting use of excessive force by correction officers, and federal and state constitutional violations, denied. Notice of intention timely filed by proper means, but no claim served within one (1) year of accrual, nor was motion for late claim relief made within one (1) year of accrual as to assault cause of action. No appearance of merit to constitutional tort cause of action given common law remedy

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:
Third-party defendant’s attorney:

Signature date:
April 29, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for permission to

serve and file a late claim brought pursuant to Court of Claims Act §10(6):

  1. Motion for Permission to File a Late Claim by Marvin Calvin, Claimant and attached papers
  1. Affirmation in Opposition to Motion for Permission to File a Late Claim by Jeane L. Strickland Smith, Assistant Attorney General, and attached exhibits
Marvin Calvin, an inmate proceeding pro se, alleges in his proposed claim that defendant’s agents at Downstate Correctional Facility [Downstate] assaulted him. More specifically, he alleges that on August 14, 2007 he was assaulted by Correction Officers Rozanski and Mulkins outside a doctor’s office in the Mental Health Unit at Downstate, suffering a dislocated shoulder among other injuries. Although a notice of intention served on September 24, 2007 suggested that claimant would also raise constitutional violations, the proposed claim does not mention same.

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982).

The motion must be timely brought in order to allow that a late claim be filed “. . . at any time 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 . . . ” Court of Claims Act §10(6). A motion is “made, when a notice of motion . . . is served.” Civil Practice Law and Rules §2211; see also Jenkins v State of New York, 119 Misc 2d 144, 145 (Ct Cl 1983).

A claim predicated upon the use of force by a correction officer is a cause of action for assault. In this claim, with regard to any proposed assault cause of action, the applicable statute of limitations is one (1) year as it derives from the intentional tort of assault. Civil Practice Law and Rules §215(3). This claim accrued on August 14, 2007, but the motion was not made until February 26, 2009 when the motion was served on the Attorney General’s Office. [See Affirmation in Opposition to Motion for Permission to File a Late Claim, ¶6, Exhibit A]. The motion is untimely as the applicable statute of limitations has expired, and is denied on that ground alone. Hernandez v State of New York, 39 AD3d 709 (2d Dept 2007).

Defendant acknowledges that a notice of intention to file a claim was served on the Attorney General’s Office by certified mail, return receipt requested, on September 24, 2007, well within ninety (90) days of accrual of the claim on August 14, 2007. [See Affirmation in Opposition to Motion for Permission to file a Late Claim, ¶7, Exhibit C]; Court of Claims Act §10(3-b). Court of Claims Act §11(b) requires that a notice of intention “. . . state the time when and place where such claim arose, [and] the nature of same . . ..” The purpose of the notice of intention is to put the State on notice of potential suit against it, so that it may investigate the claim and infer a theory of liability. It also acts to extend the period within which a claim must be served and filed, provided it has been properly served and contains the required information. “While Court of Claims Act § 11(b) does not require ‘absolute exactness’, it requires a statement made with ‘sufficient definiteness to enable the State to be able to investigate the claim promptly and to ascertain its liability under the circumstances. The statement must be specific enough so as not to mislead, deceive or prejudice the rights of the State. In short, substantial compliance with section 11 is what is required’. . . (citation omitted).” Grumet v State of New York, 256 AD2d 441, 442 (2d Dept 1998); see Heisler v State of New York, 78 AD2d 767 (4th Dept 1980); c.f. Triani v State of New York, 44 AD3d 1032 (2d Dept 2007).

The notice of intention served here states the following:
“On August 14, 2007 at approximately 10:30 a.m. excessive physical force was used against me by C.O. Rozanski, C.O. Mullins, and Sgt. Woliver causing me to sustain injuries at Downstate Correctional Facility. Which is in violation of my Constitutional Rights (8th Amendment).” [Affirmation in Opposition, Exhibit C].

Counsel for defendant indicates that the foregoing only alleges “Eighth Amendment constitutional violations as a result of the August 14, 2007 incident . . . [ not] physical injury.” [Affirmation in Opposition, ¶7]. To the contrary, the pro se claimant’s indication that “excessive physical force” was used against him and that he “sustain[ed] injuries” clearly allows a “reasonable inference”[1] that he meant just that: physical injury. More significantly, the purpose of the notice is served with regard to its content in that it provides sufficient information for the State to investigate and ascertain its potential liability. Grumet v State of New York, supra; Heisler v State of New York, supra.

Unfortunately, however, any claim premised on the assault cause of action should have been served and filed within one (1) year of accrual of the claim, that is by August 14, 2008. Court of Claims Act §10(3-b).

With regard to a constitutional tort cause of action, although a late claim motion is timely measured three (3) years from accrual, the motion is denied as well. No reasonable excuses beyond lack of familiarity with the law, discussions concerning representation with a law office (and their eventual decision not to take his case) and changes from his original determination to commence a federal lawsuit, are advanced. The closely related factors of notice, opportunity to investigate and prejudice to the State, taken together, weigh in claimant’s favor. Given the prompt service of a notice of intention, whose content is adequate, together with documentation available through the internal reports generated generally by correctional facilities after such incidents, there is no prejudice.

The appearance of merit is viewed as the most important factor to consider in an application to serve and file a late claim. With regard to a cause of action for alleged constitutional violations, no cause of action against the State of New York exists for alleged violations of an individual’s rights under the United States Constitution [See Welch v State of New York, 286 AD2d 496, 498 (2d Dept 2001); Zagarella v State of New York, 149 AD2d 503 (2d Dept 1989); Davis v State of New York, 124 AD2d 420, 423 (3d Dept 1986)], in that the State is not a “person” amenable to suit pursuant to 42 USC §1983. With regard to violations of the New York State Constitution, a constitutional tort remedy is implied under circumstances not present here where a common law remedy - such as a claim for assault for example - would not have been available. See generally Brown v State of New York, 89 NY2d 172 (1996).

Based on the foregoing, claimant’s motion for late claim relief is in all respects denied.

April 29, 2009
White Plains, New York

Judge of the Court of Claims

[1]. “The reasonable inference to be drawn from the language was that the decedent’s wrongful death allegedly was the result of the negligent medical treatment provided by the State. With the specific information provided, the State could have promptly investigated this claim and ascertained its liability, if any.” Rodriguez v State of New York, 8 AD3d 647,648 (2d Dept 2004). (emphasis in original).