Motion to reargue prior Decision and Order denying claimant's motion to amend claim was denied and motion for permission to file a late claim alleging a cause of action for assault and battery was granted.
|Claimant short name:||RUCANO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Motion number(s):||M-91312, M-91313|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Anthony Rucano, Pro Se|
|Defendant's attorney:||Honorable Eric T. Schneiderman, Attorney General
By: Michael T. Krenrich, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 27, 2017|
|See also (multicaptioned case)|
Claimant, proceeding pro se, seeks leave to reargue (Motion No. M-91313) this Court's Decision and Order dated September 15, 2017 which denied his motion to amend the claim to add causes of action for assault and battery and negligent operation of inmate programming. Claimant also moves (Motion No. M-91312) for leave to serve and file a late claim alleging a cause of action for assault and battery. Both motions are decided herein.
Claimant, an inmate in the custody of the Department of Corrections and Community Supervision (DOCCS), seeks damages for wrongful confinement, sexual harassment, and invasion of privacy. Claimant's prior motion to amend the claim to allege causes of action for assault and battery and negligent operation of inmate programming was denied because the Court found that the proposed assault and battery cause of action did not relate back to the incidents which are the subject of the pending claim (CPLR 203 [f]) and the State is immune from liability for discretionary programming determinations (see Directive 4803; McLean v City of New York, 12 NY3d 194, 202 ).
Claimant appears to contend in support of his motion to reargue that the proposed cause of action for assault and battery relates back to the incidents alleged in the first amended claim because the assault and battery, allegedly committed on November 1, 2016, was in retaliation for filing a sexual harassment complaint which he sent to DOCCS' Central Office on September 28, 2016 (proposed second amended claim, ¶¶ 26, 36,37). Claimant contends that the assault and battery cause of action included in his proposed second amended claim relates back to the first amended claim because a claim of sexual harassment was included in his first amended claim, and his sexual harassment complaint was the motivation for the subsequent assault and battery. Claimant contends, therefore, that his motion to file a second amended claim adding a cause of action for assault and battery was improperly denied.
Claimant also contends that the termination of his law library assignment was based upon the nature of his conviction, which prison staff discovered while improperly searching his legal papers. Inasmuch as claimant's first amended claim alleges a cause of action for invasion of privacy arising from the search of his legal papers, claimant argues that his cause of action for negligent program operation relates back to his first amended claim. Moreover, claimant contends that his proposed cause of action for negligent operation of inmate programming is based upon violations of non-discretionary protocols for terminating inmate program assignments.
It is well settled that a motion to reargue is addressed to the sound discretion of the Court and requires the moving party to demonstrate that the Court overlooked or misapprehended matters of fact or misapplied existing law to the facts presented (see CPLR 2221 [d] ; Peak v Northway Travel Trailers, 260 AD2d 840 [3d Dept 1999]; Spa Realty Assoc. v Springs Assoc., 213 AD2d 781 [3d Dept 1995]). Such a motion does not serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided (Foley v Roche, 68 AD2d 558, 567 [1st Dept 1979], lv denied 56 NY2d 507 ). Here, claimant failed to establish that his proposed cause of action for assault and battery relates back to his filed claim (see CPLR 203 [f]).
"Under the relation back doctrine, an otherwise untimely claim in an amended pleading will be deemed interposed at the time of the original pleading 'unless the original pleading does not give notice of the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to the amended pleading' " (Lawyers' Fund for Client Protection of the State of N.Y. v JP Morgan Chase Bank, N.A., 80 AD3d 1129, 1130 [3d Dept 2011] [citation omitted]). Neither the claim nor the first amended claim allege facts providing defendant with notice of an assault or battery, or a claim for negligent operation of inmate programming. Indeed, both the assault and battery and claimant's termination from his work assignment in the law library allegedly occurred after the first amended claim was filed. Alleging only that certain tortious conduct was motivated by, or connected in some tangential way, to conduct alleged in a previously served claim is insufficient to invoke the relation-back doctrine (cf. Damir v Sandoz Inc., ___AD3d ___ 2017 WL 5328744 [1st Dept 2017] [facts alleged in the first amended claim sufficed to give defendants notice of the transactions or occurrences to be proved in asserting a whistleblower claim in the second amended claim]). Inasmuch as nothing in the filed claim or first amended claim provided notice of an assault and battery or negligence claim, causes of action which had not yet accrued, the relation back doctrine is inapplicable.
Leave to amend the filed claim to add a cause of action for negligent operation of inmate programming was also denied for lack of merit. The law is settled that an inmate has " 'no statutory or constitutional right to a prison job' " (Blake v State of New York, 145 AD3d 1336, 1337 [3d Dept 2016], lv denied 29 NY3d 908 , quoting Evans v State of New York, 57 AD3d 1123, 1123-1124 [3d Dept 2008], lv denied 12 NY3d 704 ; see also Matter of Johnson v Smith, 112 AD2d 50 [4th Dept 1985], affd for reasons stated below 66 NY2d 697 ). Rather, inmate work and program assignments are discretionary determinations for which the State is immune from liability (Directive 4803; McLean at 202). To the extent claimant argues that certain non-discretionary protocols were violated in terminating his law-library work assignment, his recourse was to file a grievance and, if necessary, seek review of the determination in Supreme Court pursuant to CPLR article 78 (see Blake v State of New York, supra). A plenary action for money damages in the Court of Claims, however, would not be appropriate as this Court lacks jurisdiction to review such determinations (see Pratow Corp. v State of New York, 148 AD3d 1065 [2d Dept 2017]; Polanco v State of New York, 130 AD3d 1494 [4th Dept 2015]). Claimant's motion to reargue is therefore denied.
The Court will next address claimant's motion to file a late claim alleging a cause of action for assault and battery which occurred on November 1, 2016 (Motion No. M-91312). The first issue for determination upon a late claim motion is whether the application is timely. Court of Claims Act § 10 (6) requires that a motion to file a late claim be made "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." Actions for assault and battery against citizens of the State are governed by a one-year statute of limitation (CPLR 215 ). The instant motion is therefore timely, having been filed and received in the Attorney General's office on October 26, 2017.
Court of Claims Act § 10 (6) permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following 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 statutory factors are not exhaustive nor is any one factor controlling (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ; Williams v State of New York, 133 AD3d 1357 [4th Dept 2015]; Matter of Gavigan v State of New York, 176 AD2d 1117 [3d Dept 1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). In deciding a late claim motion, the Court has broad discretion which will not be lightly set aside (Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]).
The excuse advanced by claimant for failing to timely serve and file the claim is that he is not a lawyer and therefore moved to amend his previously filed claim rather than move for permission to file a late claim. Ignorance of the law is not an acceptable excuse for failing to timely file a claim (see Borawski v State of New York, 128 AD3d 628 [2d Dept 2015]; Olsen v State of New York, 45 AD3d 824 [2d Dept 2007]; Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]). This excuse weighs against the claimant.
The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Claimant contends the State had notice of the essential facts constituting his assault and battery claim because Sergeant Woodruff investigated his sexual harassment complaint, and the alleged assault and battery was committed in his presence during the course of the investigation. Defendant does not dispute that it was aware of the alleged incident and will suffer no prejudice in the event claimant is permitted to file a late claim. These factors weigh in claimant's favor.
With respect to the required showing of merit, the claim is sufficiently established if the claimant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe a valid cause of action exists (Lerner v State of New York, 72 AD3d 406, 407 [1st Dept 2010], lv denied 15 NY3d 703 ; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 ). Assuming the allegations in the proposed verified claim to be true, the claim is not patently groundless or legally defective and there is reasonable cause to believe a valid cause of action exists. As to the final factor to be considered, it appears the only alternative remedy is a lawsuit against the individual assailants in federal court pursuant to 42 USC § 1983.
Weighing the totality of factors required for consideration in determining a motion for late claim relief, the Court concludes that leave to file a late claim alleging a cause of action for assault and battery would be an appropriate exercise of discretion.
Based on the foregoing, claimant's motion to reargue (Motion No. M-91313) is denied and his motion for leave to serve and file a late claim (Motion No. M-91312) for assault and battery is granted. Claimant is directed to serve and file his claim in accordance with Court of Claims Act §§ 11 and 11-a within 45 days of the date this Decision and Order is filed.
December 27, 2017
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims