“told to shut up by an officer who then grabbed Claimant’s head
and arm shoving her into and against the wall, then handcuffing her.
Thereafter, she was strip searched and further humiliated.” [Affirmation
in Support by Michael I. Braverman, Exhibit C].
Although counsel for claimant characterizes his motion as one seeking an order
allowing late filing of a notice of claim, and nunc pro tunc relief, the
Court has treated the application as one seeking permission to serve and file a
late claim, which is the appropriate practice in the Court of Claims. [See
Affirmation in Support by Michael I. Braverman, Page 1].
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 Court of Claims Act §10(6). 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
A Court is afforded considerable
discretion in determining whether to permit the late filing of a claim, and 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); Broncati v State of New York
, 288 AD2d 172 (2d Dept 2001). A
copy of the proposed claim
, must accompany the
motion, allowing the Court to ascertain the nature and location of the claim, as
well as the date of accrual. See
Court of Claims Act §11-b.
Additionally, 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).
Here, premised on a date of accrual of March 25, 2009 and an intentional tort
cause of action, the applicable statute of limitations is one (1) year, or, if
based in negligence, the statute of limitations would be three (3) years, thus
the motion is timely. Civil Practice Law and Rules §§214, 215.
A claim appears to be “meritorious” within the meaning of the
statute if it is not patently groundless, frivolous or legally defective and a
consideration of the entire record indicates that 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 (Ct Cl 1977). Claimant need not establish
a prima facie case at this point, but rather the appearance of merit.
In terms of excuse, claimant’s counsel offers that his firm was retained
just shy of the ninetieth day after accrual (“June 8, 2009”), and
that he mistakenly thought that a notice of claim should be filed with the
Office of the Comptroller of the City of New York, and did so on or about June
10, 2009. As noted by the Assistant Attorney General, it is not an excuse
generally to be confused as to which governmental entity is a proper defendant.
[See Affirmation in Opposition by Gwendolyn Hatcher, Assistant Attorney
General, ¶5]. The absence of an excuse, however, is but one of the factors
to be considered, and does not necessarily preclude relief. Bay Terrace Coop.
Section IV, Inc. v New York State Employees’ Retirement System
Policemen’s & Firemen’s Retirement System, supra.
“Even if the excuse for failing to file a timely claim is ‘not
compelling,’ 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” (citations omitted). Jomarron v State of New
York, 23 AD3d 527 (2d Dept 2005).
The closely related factors of notice, opportunity to investigate and prejudice
to the State, considered together, weigh toward granting claimant’s
motion. Any documentation of the incident, including the civilian complaint it
is alleged claimant lodged at the time, as well as the investigation pending
with the Office of Court Administration, would presumably be readily available,
indeed some aspects would be maintained by Defendant’s agents. [See
Affirmation in Support by Michael I. Braverman, Exhibit B]. The passage of
time - a mere six (6) months - has not been so great that the State’s
ability to investigate is impeded to its prejudice. Accordingly, these factors
weigh in favor of granting the motion.
In addition to the facts alleged in the verified proposed claim included with
the moving papers, claimant has attached a copy of a complaint she filed on
March 27, 2009 with the Bronx Supreme Court Criminal Division Operations office,
naming the officer alleged to have assaulted claimant with his shield number,
and counsel alludes to the individual investigating the matter by name as well.
[See Affirmation in Support by Michael I. Braverman, Page 2, Exhibit B].
As noted, it is alleged that claimant was grabbed by the head and shoved against
the wall suffering physical injury as a result, specifically to her head,
shoulder, and knees.
A cause of action for civil assault is established upon “. . .
‘proof of physical conduct placing the [claimant] in imminent apprehension
of harmful contact’ ” (citations omitted). See
Fugazy v Corbetta, 34 AD3d 728, 729 (2d Dept 2006). To establish a
cause of action for battery, a claimant must prove that there was intentional,
nonconsensual and offensive bodily contact. [Ibid.].
Committed in the scope of employment by a correction officer, a battery may
render the State vicariously liable for the acts of its agent. Jones v State
of New York, 33 NY2d 275, 279 (1973). A claim for negligent hiring or
retention or supervision is maintainable generally only if an employee is acting
outside the scope of his employment at the time of the alleged misfeasance.
Ashley v City of New York, 7 AD3d 742, 743 (2d Dept 2004).
As noted, claimant need not establish her claim prima facie, but rather
must show the appearance of merit. In this regard, the defendant’s
apparent argument that medical records must be included on an application for
late claim relief where physical injuries are alleged is rejected. It bears
repeating that the appearance of merit is not prima facie proof. While
certainly in some cases - such as those alleging medical malpractice - inclusion
of an affidavit or affirmation by a medical expert, or appropriate medical
records is warranted, where, as here, there are sworn statements in the
proposed claim, and additional, contemporaneous indicia that a valid cause of
action exists further requiring attachment of medical records as a matter of
course is unnecessary. As each application for late claim relief is considered
in the Court’s discretion, no hard and fast requirement of a particular
kind of proof is mandated. If the allegations in the claim are accepted as true
for the purposes of the motion, claimant has made the requisite showing of the
appearance of merit in order to permit late filing of her claim.
Accordingly, claimant’s motion for permission to serve and file a late
claim is hereby granted. Claimant is directed to serve a verified claim
containing separately numbered paragraphs and separately stated causes of action
upon the Attorney General, and to file same with the Chief Clerk of the Court of
Claims within thirty (30) days from the date of filing of this decision and
order in the Clerk’s office, with such service and filing to be in
accordance with the Court of Claims Act.