New York State Court of Claims

New York State Court of Claims

WHITE v. THE STATE OF NEW YORK, #2009-042-527, Claim No. NONE, Motion No. M-77109


Synopsis


This is a motion brought by pro se claimant seeking permission to file a late claim. The moving papers do not state the nature of the claim, nor is there is proposed claim attached to the moving papers. The State opposes the motion arguing that it cannot address the merits of the claim. The court denies claimant’s motion.

Case Information

UID:
2009-042-527
Claimant(s):
ANDRE WHITE
Claimant short name:
WHITE
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-77109
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
ANDRE WHITE, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 28, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court has considered the following papers on claimant’s motion for permission to file a late claim:
1. “Motion for Permission to File a Late Claim”, filed August 19, 2009
2. Opposition affirmation of Joel L. Marmelstein, Esq., dated August 28, 2009[1]



This matter comes before the court on a motion by claimant Andre White, acting pro se, seeking permission to file a late claim. The notarized “motion”, filed on August 19, 2009, alleges that the claim arose on May 4, 2009. The claimant alleges that the delay resulted from his confinement in “Solitary Confinement/Protective Custody” since the incident (though apparently he is no longer so confined). The motion states that the State had notice of the essential facts. However, the moving papers do not state the nature of the claim, nor is there a proposed claim attached to the moving papers.

The State opposes the motion, arguing primarily that it cannot address the merits of the claim or address the other statutory criteria of Court of Claims Act § 10 (6) since the moving papers are devoid of information about the proposed claim.

Furthermore, the State argues that claimant’s alleged inability to timely serve a notice of intention to file a claim or a claim due to his stay in Solitary Confinement/Protective Custody is not a reasonable excuse.

Court of Claims Act § 10 (6) provides, in relevant part, that:
[i]n determining whether to permit the [late] filing of a claim . . ., the court shall 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 one factor is not dispositive in the court’s consideration of a late claim motion. (See Bay Terrace Coop. Section IV v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979; Rice v State of New York, UID No. 2006-028-598, Claim No. NONE, Motion No. M-71150, October 18, 2006, Sise, P.J.). Additionally, the court is afforded broad discretion in its determination and consideration of the statutory factors (Matter of Gonzalez v State of New York, 299 AD2d 675; Doe v State of New York, UID No. 2004-028-512, Claim No. NONE, Motion No. M-67159, March 10, 2004, Sise, J.).

EXCUSABLE DELAY
As defendant correctly notes, claimant’s proffered excuse for the delay, that he had been kept in “Solitary Confinement/Protective Custody” and apparently lacked the opportunity to visit the law library is insufficient (Matter of Sandlin v State of New York, 294 AD2d 723; Matter of Sevilla v State of New York, 145 AD2d 865).

In a case with a similar delay, the court stated that:
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.]).

(Stein v State of New York, UID No. 2009-039-130, Claim No. NONE, Motion No. M-76401, July 20, 2009, Ferreira, J.).

This factor does not favor the claimant.

NOTICE, OPPORTUNITY TO INVESTIGATE AND PREJUDICE
Since there is no proposed claim attached to the moving papers, and since the motion itself is devoid of any of the essential facts constituting the claim, claimant has failed to demonstrate that the defendant in fact received notice, had an opportunity to investigate and was not prejudiced by the delay.

A consideration of these three factors does not favor the claimant.

MERITORIOUS CLAIM
This factor is often considered the most decisive, since “it would be a futile gesture to permit a claimant to file a claim which is legally defective and thus subject to immediate dismissal” (Terrell v Green Haven Correctional Facility, Ct Cl, June 14, 1977, Rossetti, J.; see Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 10).

In this case, claimant’s defective and insufficient papers make it impossible to determine that the claim has merit. Thus, this factor does not favor claimant.

ALTERNATIVE REMEDY
Once again, the moving papers lack sufficient information to allow the court to determine whether the claimant has any available alternative remedies. Since such a determination cannot be made on the papers before the court, this factor does not favor the claimant.

Having weighed all of the statutory factors, the court finds that the claimant has failed to meet the statutory criteria for the late filing of a claim (see Jerrett v State of New York, 166 AD2d 907). Accordingly, claimant’s motion for permission to serve and file a late claim is hereby denied.



October 28, 2009
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims




[1]. The opposition affirmation refers to an “Exhibit A”, a copy of the claimant’s moving papers. However, no Exhibit A is attached to the opposition affirmation. Apparently the exhibit was intended to make the point that there was no proposed claim attached to the motion papers served upon the defendant. The Court notes that while the exhibit is missing from the opposition papers, the Court’s own set of claimant’s moving papers also lacks a copy of the proposed claim.