Movant's motion seeking permission to file a late notice of intention to file a claim is treated as a motion for permission to late file a claim. Motion denied without prejudice to file a subsequent motion addressing the factors in Court of Claims Act § 10 (6).
|Claimant short name:||HOUSER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||DOMINIQUE HOUSER, Pro Se|
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: Thomas G. Ramsay, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 14, 2017|
|See also (multicaptioned case)|
Movant DominIque Houser, an inmate proceeding pro se, moves the Court for permission to file a late notice of intention to file a claim. Court of Claims Act § 10 (6) provides the procedure for seeking leave to file and serve a late claim.(1) It does not provide for the late filing of a notice of intention (Holmes v Roswell Park Cancer Inst. Corp., 5 Misc 3d 446 [Ct Cl 2004]). The court will consider movant's application as a motion for permission to late file a claim. Defendant opposes the motion.
A motion for permission to file and serve a late claim must be brought "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" (Court of Claims Act Section 10 ). A negligence action against a private citizen would have to be commenced within three years of accrual of the claim (CPLR 214) while an action based on an intentional tort must be brought within one year of accrual (CPLR 215). Movant alleges that his claim accrued on October 10, 2016 (proposed notice of intention) or on October 18, 2016 (claimant's supporting affidavit). In that his motion was filed before the expiration of either the one year or three year statute of limitations utilizing either accrual date, the motion is timely.
Section 10 (6) of the Court of Claims Act also requires that "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application." The failure to include the proposed claim containing all the information required by Section 11 of the Court of Claims Act is a basis, in and of itself, for denial of the motion (Davis v State of New York, 28 AD2d 609 [3d Dept 1967]). The only proposed document attached to this motion is the proposed notice of intention which does not include all of the information which must be included in a proposed claim. Pursuant to Court of Claims Act § 11 (b), "[t]he claim shall state the time when and place where such claim arose [and] the nature of same . . . ." Nothing in the proposed notice of intention indicates who was involved in the physical altercation or states how the defendant was responsible. In addition, the proposed notice of intention indicates that the altercation occurred on October 10, 2016, but the supporting affidavit states that the incident underlying this claim occurred on October 18, 2016. Thus, the proposed notice of intention is insufficient to be considered as the proposed claim.
Court of Claims Act § 10 (6) grants the Court broad discretion to permit the late filing of a 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 [movant] has any other available remedy." The factors enumerated in the statute are not exhaustive and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ).
In support of his motion, movant only addresses a few of these factors. With respect to the first factor, movant alleges that his failure to timely file and serve a claim was excusable as he is a layperson and had limited access to the law library. Movant's excuse is insufficient as neither ignorance of the law nor incarceration constitute acceptable excuses (Matter of Robinson, 35 AD3d 948 [3d Dept 2006]). In addition, movant argues that the State had notice of the essential facts as an officer was also assaulted. Without knowing the correct date of the alleged assault, the participants or any indication as to how the State was involved or responsible for the assault, the Court cannot conclude that the State had notice of the essential facts.
The most important factor to consider is merit as it would be futile to permit the filing of a meritless claim (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]. It is movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is a reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). In his reply statement, movant merely states that he will demonstrate to the Court that his claim has merit if given the opportunity. Movant could have attempted to show that a proposed claim was not groundless by including a proposed claim that included the exact date of the incident giving rise to the claim, by setting forth a cause of action and by stating how the State was responsible for the alleged incident. Movant has failed to establish that his claim is not patently groundless, frivolous or legally defective and that a valid cause of action exists.
Based on the foregoing, movant's motion no. M-90073, treated as a motion for permission to late file a claim, is denied without prejudice. Movant may file a subsequent motion for permission to late file a claim that includes a proposed claim which is in compliance with Court of Claims Act § 11 (b) and is accompanied by an affidavit which addresses all of the factors set forth in Court of Claims Act § 10 (6). Any subsequent motion should be filed prior to the expiration of the applicable statute of limitations.
September 14, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and verified statement filed March 10, 2017, with attached exhibit;
2. Opposing affirmation of Assistant Attorney General Thomas G. Ramsay filed April 4, 2017; and
3. Verified reply statement received by the Court on June 26, 2017.
1. In his reply statement, movant refers to General Municipal Law § 50-e which governs actions against municipalities. It does not, however, govern this action against the State of New York which is governed by the Court of Claims Act. Movant mailed his reply papers directly to Chambers. He did not file reply papers with the Clerk of the Court of Claims in Albany and may have neglected to serve a copy of his reply papers on the Assistant Attorney General as there is no affidavit of service attached. Accordingly, movant's reply papers has been read, but given little weight.