Motion for late claim relief denied. Claimant failed to address any of the six statutory factors contained in Court of Claims Act § 10 (6) and thus failed to meet his burden of persuasion on the motion.
|Claimant(s):||ANTONIO BENNETT a/k/a ANTHONY WILLIAMS|
|Claimant short name:||BENNETT|
|Footnote (claimant name) :|
|Defendant(s):||N.Y.S. DIVISION OF PAROLE|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||ANTONIO BENNETT a/k/a ANTHONY WILLIAMS, Pro se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||January 15, 2021|
|See also (multicaptioned case)|
Claimant, an individual formerly incarcerated in a State correctional facility, moves for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim alleges a variety of causes of action that accrued at Downstate Correctional Facility (CF) on July 16, 2018. Defendant has not responded to the motion, which will be denied for the reasons that follow.
The proposed claim alleges a number of causes of action, including wrongful confinement, "wrongful conduct," breach of contract, negligence, and appropriation that accrued at Downstate CF on July 16, 2018 (Proposed Claim, ¶ 2). The proposed claim contains no other substantive allegations but demands $40 million in damages (see id. at ¶ 6), and is appended with a document listing 90 "exhibits," each of which contains a brief statement consisting largely of definitions of various terms but no substantive argument in support of the application for late claim relief (see id., unenumerated attachments [Exhibits 1-90]). The proposed claim is further appended with email correspondence between claimant and the Office of the Clerk of the Court of Claims, Certificates of Disposition related to claimant's criminal offenses, print outs from the Department of Corrections and Community Supervision website containing claimant's inmate information, and copies of 9 NYCRR 8005.20, which governs final parole revocation hearings, 12 NYCRR 253.2, which addresses joinder of parties, and 9 NYCRR 8002.6, which governs the eligibility of parole violators for re-release (see id., unenumerated attachments).
In deciding a motion to file a late claim, the Court is required to consider 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"
(Court of Claims Act § 10 ). 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 & Firemen's Retirement Sys., 55 NY2d 979, 981 ), and the weight accorded the various factors is a matter within the discretion of the Court. Although "[t]he movant need not satisfy every statutory element[,] . . . the burden rests with the movant to persuade the court to grant his or her late claim motion" (Frederick v State of New York, 23 Misc 3d 1008, 1011 [Ct Cl 2009]).
In support of the instant motion for late claim relief, claimant has submitted only a notice of motion in which he indicates that the relief he is requesting is "filing timely claim" (Notice of Motion, dated Oct. 20, 2020), with the exhibits described above, and it is unsupported by any argument addressing the statutory factors contained in Court of Claims Act § 10 (6).(1) In the absence of an affidavit or argument addressing the six factors set forth in Court of Claims Act § 10 (6), claimant has wholly failed to meet his burden of persuasion on this motion, and it must be denied without prejudice to a subsequent motion addressing the statutory factors set forth in Court of Claims Act § 10 (6) (see Lee v State of New York, 124 AD2d 312, 313 [3d Dept 1986] ["(t)he Court of Claims . . . properly exercised its discretion in denying claimant's motion for permission to file a late claim" where the pro se claimant "failed to address the several factors set forth in Court of Claims Act § 10 (6)"]; see also Pankova-Visser v State of New York, UID No. 2019-038-614 [Ct Cl, DeBow, J., Dec. 18, 2019]; Martinez v State of New York, UID No. 2019-015-148 [Ct Cl, Collins, J., May 16, 2019]).
Accordingly, it is
ORDERED, that claimant's motion number M-96163 is DENIED.
January 15, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Notice of Motion, dated October 20, 2020, with unenumerated exhibits;
2. Proposed Claim, verified October 6, 2020;
3. Affidavit of Service of Antonio Bennett, sworn to September 29, 2020.
1. Claimant has also filed with the Court a further submission in support of the instant motion, which consists of eight handwritten pages containing claimant's definitions of various terms and refers to the "exhibits" and regulations attached to the proposed claim (see Undated Bennett Submission, filed Dec. 18, 2020).