Claimant's motion for permission to file a late claim alleging assault by correction officer and negligent medical treatment granted in part, with respect to causes of action for negligence, assault and battery. Late claim relief denied with respect to proposed causes of action sounding in State constitutional tort and intentional infliction of emotional distress.
|Claimant short name:||SAUNDERS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||ROBERT DEMBIA, P.C.
By: Robert Dembia, Esq.
|Defendant's attorney:||ANDREW M. CUOMO, Attorney General of the State of
By: Kent B. Sprotbery, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 23, 2009|
|See also (multicaptioned case)|
This is a motion pursuant to Court of Claims Act § 10 (6) for permission to file a late claim. The proposed claim alleges that claimant was assaulted on November 14, 2008 by correction officers while claimant was incarcerated at Great Meadow Correctional Facility. The proposed claim also alleges that claimant did not receive adequate medical care following the alleged assault. The motion is opposed by defendant.
In deciding a motion to file a late claim, Court of Claims Act § 10 (6) requires the Court to consider, among other factors, "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy." The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 ), and the weight accorded the various factors is a matter within the discretion of the Court.
Claimant asserts that his delay in filing the claim is excusable because he was initially hospitalized and then confined to the facility infirmary for a total of approximately two months following the alleged assault, and his recovery from his injuries has been slow and painful, so it was difficult to meet with an attorney until June 2009. While claimant's excuse is reasonable as it pertains to the period of time that claimant was medically confined, claimant's excuse for the delay following his release from that confinement is not persuasive. Accordingly, this factor weighs against claimant's application.
Whether the State had notice of the essential facts constituting the claim and had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). It is clear from the papers submitted that the State had actual notice of the essential facts of this claim and an opportunity to investigate the claim as claimant was examined by Department of Correctional Services personnel as part of an "Alleged Fight Exam" on the date of the alleged assault (Dembia Affirmation, Exhibit 1). Further, the ten-month delay between the alleged assault and the filing of this motion does not appear to have resulted in substantial prejudice to the State, especially in light of the fact that the State had actual notice of the alleged incident and claimant's injuries, as noted above. Accordingly, all three of these factors weigh in claimant's favor.
The appearance of merit to a proposed claim is perhaps the most significant factor for the Court to consider because Court of Claims Act § 10 (6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]), yet a litigant should not be subjected to the futility of pursuing a meritless claim (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he will prevail on his claim. Rather, a proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not patently groundless, frivolous or legally defective; and (2) all of the evidence submitted on the motion establishes reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., supra at 11).
The proposed claim contains five causes of action alleging negligence, assault, battery, intentional infliction of emotional distress and state constitutional tort. The first three causes of action in the proposed claim, which sound in negligence, assault and battery, are not patently groundless, frivolous or legally defective, and the evidence submitted on the motion clearly establishes reasonable cause to believe that valid causes of action exist. Thus, the first three causes of action have the appearance of merit within the meaning of Court of Claims Act § 10 (6).
The fourth proposed cause of action, alleging the intentional infliction of emotional distress, cannot be asserted against the State as a matter of public policy (see Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 ). Accordingly, the proposed fourth cause of action lacks the appearance of merit.
The proposed fifth cause of action alleges that defendant is liable to claimant for "violation of constitutional rights under the State Constitution, including but not limited to illegal search and seizure" (Dembia Affirmation, Exhibit 13, at ¶ 11). The proposed claim further alleges a "violation of constitutional rights under state law and, [sic] including deprivation of due process and of the right to be free from unlawful arrest and unlawful search and seizure" (id., at ¶ 4). As an initial matter, inasmuch as the claim alleges that claimant was assaulted by correction officers and received inadequate medical care, the Court is unable to discern what - if any - due process violations are alleged. Moreover, the State constitutional tort recognized by the Court of Appeals in Brown v State of New York (89 NY2d 172 ) is a "narrow remedy" that is available only when there is no other remedy by which the claimed constitutional right can be enforced (see Brown v State of New York, supra at 189, 192; Martinez v City of Schenectady, 97 NY2d 78, 83-84 ; Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]). To the extent the proposed claim asserts a violation of a State constitutional right to be free from unlawful arrest and unlawful search and seizure, there exists a common law remedy in the nature of false imprisonment or unlawful confinement and thus, no cause of action alleging a State constitutional tort will lie. Thus, the fifth cause of action lacks the appearance of merit.
Finally, with respect to the requirement that the Court consider the availability of other remedies to the filing of a late claim, claimant's counsel acknowledges that claimant may pursue a federal civil rights claim under 42 USC §§ 1981, 1983 and 1988, but that "there is little or no chance [claimant] would be able to present a viable claim under 42 U.S.C. § 1983" (Dembia Affirmation, at ¶ 26). Be that as it may, an alternative remedy is available to claimant (see Duberry v State of New York, UID # 2008-030-584, Motion No. M-75662, Scuccimarra, J. [Dec. 15, 2008]).
Therefore, with respect to the first three causes of action in the proposed claim, the Court finds that four of the six statutory factors, including the crucial factor of the appearance of merit to the proposed claim, weigh in favor of granting the late claim motion. The Court finds that only three of the six factors weigh in favor of the proposed fourth and fifth causes of action, with notably the factor of the appearance of merit weighing against claimant's application. Accordingly, it is
ORDERED, that Motion No. M-77166 is GRANTED IN PART, and claimant is granted permission to file a late claim asserting the first three causes of action stated in the proposed claim, and it is further
ORDERED, that claimant is directed to file and serve a claim that asserts the first three causes of action stated in the proposed claim in accordance with the requirements of sections 11 (a) (i) and 11-a of the Court of Claims Act, not later than thirty (30) days after the date of filing of this Decision and Order, and it is further
ORDERED, that Motion No. M-77166 is DENIED in all other respects.
December 23, 2009
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Notice of Motion, filed September 10, 2009;
(2) Affidavit of Samuel Saunders, sworn to September 4, 2009;
(3) Affirmation of Robert Dembia, Esq., dated September 8, 2009, with Exhibits 1-13;
(4) Affirmation in Opposition to Motion to Late File of Kent B. Sprotbery, AAG, dated
October 14, 2009.