New York State Court of Claims

New York State Court of Claims

BROWNLEE v. THE STATE OF NEW YORK, #2009-040-065, Claim No. NONE, Motion No. M-76853


Synopsis


Court of Claims Act § 10(6) motion to file a claim late denied in part and granted in part.

Case Information

UID:
2009-040-065
Claimant(s):
MICHAEL BROWNLEE
Claimant short name:
BROWNLEE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-76853
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Michael Brownlee, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Michael C. Rizzo, Esq., AAG
Third-party defendant’s attorney:

Signature date:
August 14, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, the application of Movant, Michael Brownlee, to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is denied in part and granted in part.

The proposed Claim, attached to the motion papers, alleges that: on April 3, 2007, Movant was incarcerated at Bare Hill Correctional Facility located in Malone, New York (Bare Hill); that Sergeant T. White directed that Movant be sent from his afternoon facility program to the medical unit; that following a “brief review” Sergeant White determined that Movant had been involved in a fight at the facility on April 1, 2007 and Movant was escorted to the Special Housing Unit (SHU) (Proposed Claim, ¶ 4); that, on April 4, 2007, Movant was issued a Misbehavior Report and charged with violating four specified prison rules; that a Disciplinary Hearing was held on April 10, 2007 and Movant was found guilty of all charges; that, on April 19, 2007, Movant was told that he would be transferred the following day to Upstate Correctional Facility located in Malone, New York (Upstate); that he was transferred that same evening, which was unusual; that, when Movant arrived at Upstate, he should have received his personal property within 72 hours of arrival according to Department of Correctional Services (DOCS) Directive 4933, §302-02, but he did not receive his property for six days ( Proposed Claim, ¶ 11); that, while confined to SHU at Upstate, Movant began to hear voices; that on, April 22, 2007, Sergeant Gill observed Movant in his cell and “[p]laced a referral with the Office of Mental Health [OMH] staff based upon his observation” of Movant talking to himself; that, because it was a weekend, there was no OMH staff available; that a medical nurse responded, deemed the situation not to be an emergency and left (Proposed Claim, ¶ 13); that, on April 24, 2007, after being left in his cell for two additional days without being seen by OMH staff, Movant overdosed on medication that had been left in his cell before he arrived at Upstate; that Movant also attempted to hang himself after the overdose and that, on April 24, 2007 at approximately 9:15 a.m. in Building 9, cell 8, Movant was assaulted by four Correction Officers.

Movant asserts causes of action for: wrongful confinement to SHU as he asserts that his disciplinary hearing was not timely commenced within seven days of being confined to SHU; negligence in not receiving his personal property within 72 hours of arrival at Upstate as required by DOCS regulations; and negligence in not being seen by OMH staff, in failing to provide Movant with a safe environment, and in failing to search Movant’s SHU cell properly, prior to his habitation of it, to ensure that the cell did not contain any items that might cause him harm. Movant also asserts a cause of action for assault by the Correction Officers on April 24, 2007.

Pursuant to Court of Claims Act § 10(6), it is within the Court’s discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed Claim appears to assert causes of action for the intentional torts of assault and wrongful confinement, the latter constituting a form of false imprisonment (CPLR § 215[3], a one-year statute of limitations) and negligence (CPLR § 214[5], a three-year statute of limitations). The assault cause of action accrued on the date of the alleged assault, April 24, 2007. A claim for wrongful excessive confinement in a prison setting, which is a species of the tort of false imprisonment (Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]), accrues on the date of release from confinement (Roche v Village of Tarrytown, 309 AD2d 842, 843 [2d Dept 2003]; Nunez v City of New York, 307 AD2d 218, 219 [1st Dept 2003]; Collins v McMillan, 102 AD2d 860, 861 [2d Dept 1984]). Movant states, in his proposed Claim, that the sentence imposed by the hearing officer on April 10, 2007 was six months of confinement in SHU. Movant does not state the date he was released from SHU. However, according to Movant, his time in SHU began on April 3, 2007, so he should have been released from SHU on October 3, 2007. Thus, the statute of limitations for both the cause of action for assault and false imprisonment has expired. As a movant is permitted to file a late Claim only if the underlying cause of action is not time barred (Arbor Hill Partners v New York State Commr. of Hous. & Community Renewal, 267 AD2d 675 [3d Dept 1999]; Marine Midland Bank v State of New York, 195 AD2d 871 [3d Dept 1993], lv denied 82 NY2d 661 [1993]), Movant’s motion for permission to file a late claim regarding these two causes of action is denied. Movant asserts several causes of action for negligence, all of which accrued in April 2007. Thus, those causes of action are timely asserted.

Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).

The first factor to be considered is whether the delay in filing the claim was excusable. The Court finds Movant’s proffered excuse for the delay in timely filing and serving the claim – lack of knowledge of the Court’s filing requirements – is not a reasonable excuse (Modern Transfer Co. v State of New York, 37 AD2d 756 [4th Dept 1971]; Fowx v State of New York, 12 Misc 3d 1184[A] [Ct Cl 2006]). However, tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979, supra at 981).

The next three factors to be addressed – whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant – are interrelated and will be considered together. Defendant does not argue lack of notice, lack of opportunity to investigate, or that it will be substantially prejudiced by a delay in filing a claim (see Affidavit in Opposition of Michael C. Rizzo, Esq.). Those factors, therefore, weigh in Movant’s favor.

The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does not have any alternate remedy.

The sixth, final and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Rosenhack v State of New York, 112 Misc 2d 967, 968 [Ct Cl 1982]; Flaherty Corp. v State of New York [New York State Parks & Recreation Div.], 102 Misc 2d 438, 440 [Ct Cl 1979]). It is Movant’s burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, supra at 11-12).

At this stage of the proceeding, it should be noted, the Court generally takes as true factual allegations of Movant. Based upon the entire record, the Court finds that the proposed causes of action alleging negligence have the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.

In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant’s favor. The mix of circumstances presented by this case falls well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicating a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, supra). Movant has provided ample basis for a favorable exercise of this Court’s discretion to grant him leave to file a late claim regarding his negligence causes of action against the State. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the Clerk of the Court his proposed Claim against the State with respect to the causes of action alleging negligence only and serve a copy of the proposed Claim, as so amended, upon the Attorney General by personal service or certified mail, return receipt requested. In serving and filing the Claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.


August 14, 2009
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on Movant’s motion for permission to serve and file a claim late:

Papers Numbered


Notice of Motion, Affidavit in Support
and Exhibit Attached 1

Affidavit in Opposition 2