New York State Court of Claims

New York State Court of Claims

LEDAN v. THE STATE OF NEW YORK, #2009-030-554, Claim No. NONE, Motion No. M-77092


Late claim motion granted. No excuse, but no prejudice to State. Proposed claim alleges that a named officer assaulted claimant at courthouse. Not required that claimant attach medical records or medical expert affirmation to establish appearance of merit of the cause of action under the late claim standard of proof.

Case Information

1 1.The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
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:
September 17, 2009
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for late claim relief:

1,2 Notice of Motion, Affirmation in Support by Michael I. Braverman, attorney for claimant and attached exhibits

  1. Affirmation in Opposition by Gwendolyn Hatcher, Assistant Attorney General
Letitia Ledan alleges in her proposed claim that on March 25, 2009 State employees used excessive force and assaulted her at the Bronx County Supreme Court, Criminal Division, causing her personal injuries. More specifically, it is alleged that between 10:00 and 11:00 a.m. on that date she was
“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 available.[2] 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[3], 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.

September 17, 2009
White Plains, New York

Judge of the Court of Claims

[2]. The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor. Cole v State of New York, 64 AD2d 1023, 1024 (4th Dept 1978)[“Although the State argues in this appeal that claimant's inference of notice to it is based on equivocal facts, it filed no affidavit with the court claiming either prejudice or lack of notice. When answering affidavits are not produced, the facts alleged in the moving affidavits will be taken by the court as true”...(citations omitted).]
Court of Claims Act § 10(6) states in pertinent part “[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application.”