New York State Court of Claims

New York State Court of Claims

STEIN v. STATE OF NEW YORK, #2009-039-130, , Motion No. M-76401


Synopsis


Movant’s motion for permission to file a late claim is granted. Inclusion of five enumerated causes of action within movant’s supporting affidavit sufficient to overcome movant’s failure to include proposed claim. Movant’s supporting affidavit and reply papers support a valid cause of action related to an alleged assault upon movant by correction officers. Nor is Court persuaded that State will suffer substantial prejudice if movant is permitted to file late claim.

Case Information

UID:
2009-039-130
Claimant(s):
ROGER STEIN (I.D.# 00-B-2604)
Claimant short name:
STEIN
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-76401
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Roger Stein, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Glenn C. KingAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 20, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Roger Stein (hereinafter movant) seeks an order from the Court granting him permission to file a late claim arising out of an incident that occurred on June 5, 2008 at Clinton Correctional Facility when it is alleged that he sustained injuries after he was assaulted by correction officers. The State of New York opposes the motion.

It is well settled that “[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim” (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]). When deciding whether to grant an application to file a late claim, the court is required 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” (Court of Claims Act § 10 [6]).


“No single factor is deemed controlling, as the presence or absence of any one factor is not determinative” (Matter of Beckford v State of New York, 264 AD2d 841 [1999]; see also Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). “One of the factors to be considered is whether the claim has the appearance of merit, as it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported the granting of the claimant’s motion” (Savino v State of New York, 199 AD2d 254, 254-255 [1993]). “In order for a claim to ‘appear to be meritorious’ . . . it must not be patently groundless, frivolous, or legally defective, and . . . the court must find, upon consideration of the entire record, including the proposed claim and any affidavits or exhibits, 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, 11 [1977]).

On balance, the Court concludes that the foregoing factors weigh in favor of granting movant’s application for permission to file a late claim. Pursuant to Court of Claims Act § 10 (6), the proposed claim must accompany an application for permission to file a late claim. Here, movant did not include, as a separate document, his proposed claim. Instead, movant incorporated five enumerated causes of action within the body of his supporting affidavit that contain sufficient information and allegations for the Court to assess the merit of his claim (see Larocco v State of New York, Ct Cl, May 24, 2004, #2004-009-33, M-68085 [Midey, Jr., J.]). Based upon a review of movant’s supporting affidavit and reply papers, the Court finds that a reasonable basis exists at this juncture to support a valid cause of action related to the alleged assault upon movant by correction officers. Moreover, defendant does not contend that the proposed causes of action are without merit.

Nor is the Court persuaded that the State will suffer substantial prejudice if movant is permitted to file a late claim. The State argues that it was not on notice of the essential facts of the allegations until several months after the incident, and therefore it did not have an opportunity to timely investigate the allegations. However, based upon a review of documents included with movant’s reply papers, it appears that the alleged incident was well documented by prison officials.

There are a few factors that do not favor movant, but the Court concludes that they are not so significant as to warrant denial of his application for a late claim. Movant alleges, among other things, as an excuse for the delay in filing a claim, that he was placed in solitary confinement and deliberately denied any mail, phone or law library privileges. While such allegations, if true, are cause for concern, they are insufficient to establish “that the circumstances of his incarceration prevented [him] from taking effective steps to perfect his claim within ninety (90) days of its accrual, or contact an attorney” (Bryant v State of New York, Ct Cl, November 10, 2008, #2008-030-575, M-75604 [Scuccimarra, J.]; see also Mann v State of New York, Ct Cl, April 29, 2008, #2008-042-510, M-74151 [Siegel, J.]). Additionally, there are other potential remedies available to movant, such as a federal civil rights claim or a Supreme Court action (see Mann v State of New York, supra).

Accordingly, it is

ORDERED that M-76401 is granted; and it is further

ORDERED that movant is directed to serve and file his claim within forty-five (45) days from the date of filing of this decision and order and in accordance with Court of Claims Act Sections 11 and 11-a.



July 20, 2009
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion and Supporting Affidavit sworn to on March 3, 2009;
  2. Affirmation in Opposition to Movant’s Motion to Late File A Claim by Glenn C. King, AAG, dated April 8, 2009; and
  3. Notice of Motion in Response to the Affirmation in Opposition to Late File a Claim by Roger Stein dated April 15, 2009 with exhibits.