Motion for late claim relief denied for proposed claim alleging that claimant was assaulted by defendant's employees and seeking compensation for lost personal property. Late claim relief is unavailable for inmate property claims, a cause of action sounding in intentional tort for the assault is beyond the applicable one-year statue of limitations, and late claim relief was not warranted for a State constitutional tort claim because statutory factors, including the absence of merit, weighed against granting late claim relief.
|Claimant(s):||CLIFFORD W. WARES|
|Claimant short name:||WARES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||CLIFFORD W. WARES, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Glenn C. King, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 10, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, moves pursuant to Court of Claims Act § 10 (6) for permission to file and serve a late claim. The proposed claim alleges that claimant was assaulted by correction officers on June 8, 2015 at Greene Correctional Facility (CF). The proposed claim also seeks compensation for items of personal property that were allegedly lost, disposed of and damaged by defendant's agents at Greene CF after the alleged assault. Defendant opposes the motion.
As an initial matter, permission to grant late claim relief pursuant to Court of Claims Act § 10 (6) is not available for claims for lost personal property brought pursuant to Court of Claims Act § 10 (9) (Encarnacion v State of New York, 133 AD3d 1049, 1050 [3d Dept 2015], lv denied 26 NY3d 919 ; Roberts v State of New York, 11 AD3d 1000, 1001 [4th Dept 2004]). The claim seeks compensation for numerous items of personal property (see Proposed Claim, ¶¶ 1, 9), upon alleged "violations of the New York State Constitution Article I, (5), prohibiting . . . illegal unwarranted search and seizure of property and for the rights to property," and seeks damages for the "loss and damage of claimants [sic] personal property under state constitutional tort" (id., ¶¶ 2, 3, 11). Notwithstanding the claim's assertion of a state constitutional tort, the claim for lost and damaged property is, at its essence, a claim for negligent bailment. And even if the facts alleged in the claim support a constitutional tort (see Brown v State of New York, 89 NY2d 172 ), such a cause of action is maintainable only when no other remedy is available to enforce the claimed constitutional right (see Brown v State of New York, 89 NY2d 172, 191-192 ; Martinez v City of Schenectady, 97 NY2d 78, 83-84 ; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Bullard v State of New York, 307 AD2d 676, 678 [3d Dept 2003]). Here, there exists an administrative remedy in the form of an institutional claim for lost property. Thus, because the proposed claim does not state a viable state constitutional tort for the alleged loss of claimant's personal property, and because the late claim relief is unavailable for lost property claims, claimant will not be granted permission to file a late claim containing a cause of action for money damages for lost personal property.
A threshold determination on this motion is whether the motion was filed "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 § 10 ). The failure to file the motion within the prescribed time period is a jurisdictional defect which precludes the court from granting such a motion (see Matter of Miller v State of New York, 283 AD2d 830, 831 [3d Dept 2001]; Bergmann v State of New York, 281 AD2d 731, 733-734 [3d Dept 2001]; Williams v State of New York, 235 AD2d 776, 777 [3d Dept 1997], lv denied 90 NY2d 806 ). The proposed claim alleges that on June 8, 2015 at Greene CF claimant was assaulted and subjected to excessive force by a correction officer and sergeant resulting from a perceived slight. Specifically, the claim alleges that CO Berkowitz questioned claimant about an offensive statement he had allegedly made in the mess hall, which claimant responded by correcting CO Berkowitz and informing him the substance of the statement. The proposed claim alleges that CO Berkowitz then punched claimant three times in the head, that claimant did not fall or scream out in pain, which enraged CO Berkowitz who then punched claimant twice in the stomach, causing him to gasp for air and hunch over in pain. The proposed claim alleges that a sergeant then came over, threw claimant up against the wall and ordered him to place his hands on the wall and spread his legs, with claimant complying. The proposed claim alleges that the sergeant swept claimant's leg, causing claimant to fall forward flat onto his face and stomach. The proposed claim alleges that the sergeant proceeded to sit on claimant's back and bend his arms back while twisting his fingers and wrists, causing claimant to scream out in pain. The proposed claim alleges that the sergeant instructed CO Berkowitz to "pull the pin" on his emergency radio, and three other correction officers arrived at the scene, while two handcuffed claimant and escorted him to another location where he was photographed, issued a Tier III ticket charging him with assault on staff, and then escorted him to the infirmary. The proposed claim alleges that claimant was diagnosed with severely sprained left wrist and fingers (Proposed Claim, ¶ 1). The proposed claim asserts that it is for "violations of the New York State Constitution Article I, (5), prohibiting cruel and unusual punishment . . . which resulted in claimants [sic] assault" and for violations of New York State "Corrections Law [§] 135.7(5)" and 7 NYCRR §§ 252 (g) and 250.2 (d), that the actions of the correction officers in assaulting claimant violated Article I, section 5 of State Constitution, and that it is a "state constitutional tort claim" (id., ¶¶ 2, 11) .
A court that is evaluating a cause of action for purposes of determining the applicable limitations period is not bound by a party's characterization of the nature of the cause of action, but must examine and determine the true gravamen of the cause of action (see Western Elec. Co. v Brenner, 41 NY2d 291, 293 ; Gold v New York State Bus. Group, 255 AD2d 628, 630 n [3d Dept 1998]; Marine Midland Bank v Jerry Hamam, Inc., 96 AD2d 1137, 1138 [4th Dept 1983]). This proposed claim is properly read as sounding in the intentional torts of assault, battery and excessive force, which are subject to a one year statute of limitations under CPLR 215 (3) (see Mazzaferro v Albany Motel Enters., 127 AD2d 374, 376 [3d Dept 1987] ["once intentional offensive contact has been established, the actor is liable for assault and not negligence"]). Claimant's motion was filed on September 29, 2017, which was well more than one year after the June 8, 2015 accrual date of the assault, battery and excessive force claims, and thus, the motion is untimely and must be denied with regard to those claims. However, because the motion was filed less than three years following the June 8, 2015 accrual date, it is timely to the extent that the proposed claim can be read as asserting a State constitutional tort, which is subject to a three year statute of limitations under CPLR 214 (5) (Brown v State of New York, 250 AD2d 314, 318 [3d Dept 1998]). Thus, the Court's consideration of claimant's late claim motion will be confined to the proposed cause of action sounding in State constitutional tort.
In deciding a late claim motion, Court of Claims Act § 10 (6) requires the Court 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 served 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 particular factor is not controlling (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 981 ), and the weight accorded the various factors is a matter within the discretion of the Court.
Turning to the merits of the motion, claimant argues that the delay was excusable because he is a "lay person" who was unaware of the "short filing period set forth in the Court of Claims Act," which was "compounded by [his] incarceration . . . [his] limited ability to confer with counsel, and [his] lack of access to legal references which apply to the Court of Claims" (Wares Affidavit, ¶ 3). Claimant further avers that his failure to timely serve a notice of intention was caused by his transfers to different correctional facilities and other state facilities between June 9 and September 2, 2015, as well his detention in federal custody in New Jersey from October 2015 through August 2016 (id., ¶ 8). Claimant's ignorance of the law and his confinement in a correctional facility are not compelling excuses for the late filing of a claim (see Matter of Robinson v State, 35 AD3d 948, 950 [3d Dept 2006]; Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 ; Matter of Thomas v State of New York, 272 AD2d 650, 651 [3d Dept 2000]), and he does not explain the nature of his lack of access to legal materials or the manner in which the lack of access impeded his efforts. To the extent that claimant asserts reasons for the delay that arose from his transfers within the correctional system, and while the Court is not unsympathetic to claimant's plight, those assertions without more do not provide an excuse for claimant's failure to file and serve the claim at some time during the 90-day filing period. Claimant's federal incarceration does not excuse his late filing, as that custody post-dated the expiration of the 90-day filing period. Thus, the lack of an acceptable excuse for the untimely filing of this claim weighs against granting claimant's motion.
Whether the State had notice of the essential facts constituting the claim and had an opportunity to investigate the circumstances underlying the claim, and 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 are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Claimant argues that numerous state employees were involved in the incident, reports and other documents were generated about the incident, including inmate misbehavior reports and grievances that claimant had filed, and an investigation was conducted into the incident by Greene CF staff and the Internal Affairs Office (see Wares Affidavit, ¶¶ 4-5). Claimant further contends that his failure to timely serve the claim could not have caused substantial prejudice because the incidents were investigated, claimant was medically treated, misbehavior reports were issued and claimant filed grievances about the incidents. Defendant argues that it was not aware that litigation was planned or contemplated by claimant, and that it would suffer substantial prejudice if the motion were granted because the claim accrued more than two years prior to the filing of the motion and defendant was denied the opportunity to investigate and locate witnesses while the facts were still fresh (see King Affirmation, ¶¶ 21-22).
While notice of the essential facts also encompasses notice that litigation was planned or contemplated (Stubbs v State of New York, UID No. 2007-028-585 [Ct Cl, Sise, P.J., Dec. 28, 2007], citing Block v New York State Thruway Auth., 69 AD2d 930 [3d Dept 1979]), the nature of the alleged incident and the injuries sustained, coupled with claimant's filing of an inmate grievance about the incident was sufficient to put defendant on notice that litigation was planned or anticipated (see Espinal v State of New York, 159 Misc2d 1051, 1057 [Ct Cl 1993]["the occurrence of an assault within a prison, particularly one which results in serious injury, also gives notice of the injury and both opportunity and motivation for the State to investigate the underlying facts"]; cf. Cabrera v State of New York, UID No. 2004-019-595 [Ct Cl, Lebous, J., Nov. 22, 2004] [grievance regarding medical boots not sufficient to put State on notice that litigation was contemplated]). Here, defendant does not contradict claimant's assertions that an investigation of the incident was conducted, and does not explain how it was denied the right to investigate and interview witnesses, nor how it would be substantially prejudiced by a late claim. Accordingly, these three factors weigh in favor of claimant's application.
The appearance of merit to a proposed claim is perhaps the most significant factor for the Court to consider because Court of Claims Act § 10 (6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]), yet a litigant should not be subjected to the futility of pursuing a meritless claim (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). A proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not patently groundless, frivolous or legally defective; and (2) all of the evidence submitted on the motion establishes reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., supra at 11).
This Court finds no appellate authority recognizing a State constitutional tort sounding in cruel and unusual punishment (compare Brown v State of New York, supra [constitutional tort may be stated under constitutional search and seizure provision]). Several decisions of the Court of Claims have discussed the potential viability of such a cause of action in the context of deliberate indifference to the medical or health needs of prisoners, but none has expressly concluded that it is maintainable (see e.g. Zulu v State of New York, 2001 N.Y. Slip Op. 40047[U] [Ct Cl 2001]; Ramos v State of New York, UID No. 2000-016-106 [Ct Cl, Marin, J., Dec. 18, 2000]; De La Rosa v State of New York, 173 Misc 2d 1007 [Ct Cl 1997]). Assuming without deciding that a State constitutional tort is maintainable in these circumstances, such a cause of action is a "narrow remedy" that may be pursued only when no other remedy is available to enforce the claimed constitutional right (see Brown v State of New York, 89 NY2d at 191-192; Martinez v City of Schenectady, 97 NY2d at 83-84). Here, the allegations of cruel and unusual punishment flow from the alleged assault and excessive force by correction officers, and claimant had an alternative remedy in the form an intentional tort claim against the State (see Johnson v State of New York, UID No. 2016-038-109 [Ct Cl, DeBow, J., July 6, 2016]; Tafari v State of New York, UID No. 2016-038-110 [Ct Cl, DeBow, J., July 21, 2016]). Accordingly, even if there exists a State constitutional tort that is applicable in these circumstances, this cause of action is unavailable to claimant as a matter of law. Thus, the crucial factor of the appearance of merit weighs against claimant's motion.
Claimant's argument that he has no other available state remedies by virtue of Correction Law § 24 is unopposed. However, claimant could have brought an action seeking redress of federal constitutional rights to be free from cruel and unusual punishment under 42 USC § 1983 in the State Supreme Court (see Haywood v Drown, 556 US 729 ) or in federal court. Thus, this factor weighs against claimant's motion.
The Court has considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), and finds that three of the six statutory factors weigh against granting the late claim motion on the constitutional tort cause of action, including the crucial factor of the appearance of merit. Thus, the Court concludes that claimant should not be granted permission to file and serve a late claim, and it is
ORDERED, that claimant's motion number M-91117 is DENIED.
January 10, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Notice of Motion, dated September 26, 2017;
(2) Affidavit of Clifford W. Wares in Support of Motion to file a Late Claim, sworn to August 31, 2017, with Exhibit 1 (Proposed Claim);
(3) Affirmation of Glenn C. King, AAG, in Opposition to Motion to File a Late Claim, dated
October 23, 2017.