New York State Court of Claims

New York State Court of Claims
FOSTER v. THE STATE OF NEW YORK, # 2018-053-505, Claim No. NONE, Motion No. M-91294


Pro se inmate's motion for permission to file and serve a late claim to recover for injuries sustained when he was allegedly assaulted by correction officers is granted. Movant established several factors favorable to his claim as required by the Court of Claims Act 10 (6), including that the State had notice, an opportunity to investigate and that there is no prejudice. Movant also established that his claim has the appearance of merit.

Case information

UID: 2018-053-505
Claimant(s): MARK FOSTER
Claimant short name: FOSTER
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-91294
Cross-motion number(s):
Claimant's attorney: MARK FOSTER, 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: January 11, 2018
City: Buffalo
Official citation:
Appellate results:
See also (multicaptioned case)


Movant Mark Foster, an inmate proceeding pro se, moves pursuant to Court of Claims Act 10 (6) for permission to file and serve a late claim to recover for injuries sustained when he was allegedly assaulted and beaten by correction officers while incarcerated at Livingston Correctional Facility (Livingston). Defendant State of New York opposes the motion.

A motion seeking 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 10 [6]). Movant was allegedly assaulted on May 25, 2017. The applicable statute of limitations for a claim based on an assault and battery is one year (CPLR 215 [3]). Movant's motion was filed on October 26, 2017, within one year of the alleged assault. Accordingly, movant's motion is timely.

The Court of Claims is vested with broad discretion to grant or deny permission to late file a claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In determining whether to grant permission to late file a claim, the Court must 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 [movant] has any other available remedy" (Court of Claims Act 10 [6]). The enumerated statutory factors 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 [1982]).

The first factor to be considered by the Court is whether the delay in filing and serving a claim was excusable. Movant argues that his failure to timely file a claim was excusable as he is a layperson without knowledge of the filing period, compounded by his inability as an inmate to confer with counsel and to access legal resources. Movant's excuse is insufficient as neither ignorance of the law nor incarceration constitute acceptable excuses (Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002]), lv dismissed 99 NY2d 589 [2003]). The lack of an excusable delay is, however, only one of the factors to be considered.

The next three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [Ct Cl, 1998]). Movant argues that because the State had the records of the Superintendent's hearing, records of the administrative appeal process, a use of force report and the record of movant's grievance that the State had notice and an opportunity to investigate. The Court agrees. Insofar as the State had notice and an opportunity to investigate within ninety (90) days of the incident, there is no prejudice to the State. These factors support Movant's application.

Another factor to consider is whether Movant has another remedy available. Movant does have an alternate remedy directly against the correction officers through a civil rights action pursuant to 42 USC 1983, albeit in federal court. Thus, this factor weighs against Movant's application.

The most important factor to consider is merit as it would be futile to permit a claim to be filed which was subject to dismissal (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]). This standard does not require movant to establish the merit of his claim or to overcome all legal objections before the Court will permit the filing of a late claim (Id. at 11-12). Here, movant has provided an affidavit and a proposed claim outlining an assault by correction officers. Defendant has provided documents which defendant's counsel concludes show that the use of force was justified. There appears to be no doubt that force was utilized. Whether such force was justified may well depend on issues of credibility which are best resolved at trial. As such, the Court finds that movant's claim has at least the appearance of merit.

Upon consideration of all of the factors set forth in Court of Claims Act 10 (6), movant's motion no. M-91294 for late claim relief is granted. Movant is directed to file and serve his proposed claim upon the Attorney General in strict compliance with the Court of Claims Act within forty-five (45) days of the filing of this decision and order.

January 11, 2018

Buffalo, New York


Judge of the Court of Claims

The following were read and considered by the Court:

1. Notice of motion and affidavit of Mark Foster sworn to October 16, 2017, with annexed Exhibits A-E;

2. Opposing affirmation of Assistant Attorney General Thomas G. Ramsay dated November 22, 2017, with annexed Exhibit A; and

3. Reply affidavit of Mark Foster sworn to December 8, 2017.