Claimant's motion for late claim relief denied. Proposed claim lacked the appearance of merit, claimant failed to show a reasonable excuse for the delay in filing the claim, and claimant had other remedies available to him.
|Claimant(s):||DARRELL GUNN (03-B-2443)|
|Claimant short name:||GUNN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||DARRELL GUNN, pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: No Appearance
|Third-party defendant's attorney:|
|Signature date:||July 9, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, moves for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6).(1) The proposed claim alleges that claimant was subjected to discipline based upon a false inmate misbehavior report (IMR) by a nurse at Green Haven Correctional Facility (CF) in January 2019. Defendant has not responded to the motion.
The proposed claim alleges that "on or about January 17, 2019, Carrie Soltish, Nurse at Green Haven [CF] filed a false [IMR] against claimant" in which she "[a]lleg[ed] [that] claimant called her 'inconcompetent' [sic] as a form of harassment" (Proposed Claim, ¶ 2). The proposed claim alleges that "thereafter claimant was charged and found guilty, then punished [for] the alleged misbehavior by [a] bias[ed] hearing officer" (id. at ¶ 3). The proposed claim alleges that the IMR was false because "calling someone incompetent is no form of harassment" (id. at ¶ 4; see id. at ¶ 5), and that claimant "experienced needless economic and human hardship" and "has been denied to live a normal life under prison conditions" as a result of the allegedly false IMR being filed against him (id. at ¶¶ 6-7). The proposed claim alleges that Nurse Soltish violated numerous provisions of the Department of Correction and Community Supervision (DOCCS) Employee Manual and violated his right to freedom of speech under New York State Constitution, article I, § 8, and his equal protection right under New York State Constitution, article I, § 11 (see id. at ¶¶ 8-10) and demands $100,000 in damages (id. at ¶ 16).
In deciding a motion for late claim relief, 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.
In support of his motion for late claim relief, claimant does not directly address whether the delay in filing this claim was excusable, but he avers that he lacks knowledge as a lay person and that his incarceration has limited his ability to confer with an attorney or access legal materials (see Gunn Affidavit, ¶ 2). Claimant further avers that he has been denied access to the facility law library and legal materials, that he was unable to read or write because his eyeglasses were confiscated, and that he was being housed in a psychiatric unit on a hunger strike (see id. at ¶ 2 [a] - [c]). As noted above, defendant has not opposed the motion and thus does not address whether claimant's delay in filing this claim was excusable. However, it is well settled that neither claimant's "professed ignorance of the law nor his confinement in a correctional facility provide an acceptable excuse" for failing to timely file a claim in the Court of Claims (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; see Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 ; see Matter of Powell v State of New York, 187 AD2d 848, 849 [3d Dept 1992]). To be sure, claimant avers that he was housed in a psychiatric unit, but he does not state for how long he was so housed and how it affected his ability to timely file a claim. Thus, this factor weighs against granting claimant's motion for late claim relief.
The next three factors - whether the State had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim, and whether claimant's failure to file or serve upon the attorney general a timely claim or notice of intention resulted in substantial prejudice to the State - are closed 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 the State had notice of the essential facts of this claim because "[he] was served on [January] 18, 2019 a false misbehavior report authored by" Nurse Soltish (Gunn Affidavit, ¶ 3), and that his failure to timely file this claim could not have prejudiced the State "[b]ecause the State was well aware of the facts" (id. at ¶ 5). Claimant further argues that DOCCS "investigated this incident through its employees, many of who[m] are still available to the Attorney General to be contacted with respect to this incident" (id.). Because defendant has not opposed the motion and thus does not dispute any of these factors, these three factors weigh in favor of claimant's late claim application.
Turning next to the appearance of merit of the proposed claim, this factor is often decisive because, although Court of Claims Act § 10 (6) reflects a legislative determination that "litigants with meritorious claims [should] be afforded their day in court" (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]; see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]), the courts have recognized that a late claim application should not be granted where a claim is "legally deficient . . . [and] would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" (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]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he or she will prevail on the claim. Rather, a proposed claim has the 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" (Matter of Santana, 92 Misc 2d at 11).
Claimant argues in support of his application that the claim is meritorious because Nurse Soltish "does not know the dictionary definition of 'incompetent,' " and because it is based upon "prison officials not knowing their own rules[,] . . . not following their own rules[,] . . . [and] making up their own rules" (id. at ¶ 4). Again, defendant has not opposed the motion and thus has not addressed the merit of the proposed claim.
It is well settled that a cause of action sounding in state constitutional tort may be pursued only when no other remedy is available to enforce the claimed constitutional right (see Brown 89 NY2d at 192 ; Martinez v City of Schenectady, 97 NY2d 78, 83-84 ; Oppenheimer v State of New York, 152 AD3d 1006, 1008-1009 [3d Dept 2017]). Here, after being subjected to discipline based upon the allegedly false IMR, claimant could have filed an institutional grievance and, if necessary, a CPLR article 78 proceeding in Supreme Court in order to vindicate his rights (see Johnson v State of New York, UID No. 2004-019-508 [Ct Cl, Lebous, J., Jan. 20, 2004]), or he could have commenced a federal action pursuant to 42 U.S.C. § 1983 based upon the alleged violation of his free speech and equal protection rights (see Iverson v State of New York, UID No. 2019-053-518 [Ct Cl, Sampson, J., June 10, 2019] [claimant failed to establish appearance of merit with respect to causes of action alleging violation of state constitutional rights, including claimant's equal protection right, because those claims could have been raised in a federal action]; Rucano v State of New York, UID No. 2016-041-061 [Ct Cl, Milano, J., Aug. 10, 2016] [denying motion for late claim relief with respect to cause of action alleging a violation of claimant's free speech right under the New York State Constitution inasmuch as it could have been brought in federal court pursuant to 42 U.S.C. § 1983]). The proposed claim thus fails to allege any actionable claim in this Court, and the crucial factor of the appearance of merit weighs decisively against granting claimant's late claim application.
Lastly, claimant argues that he has no other available State remedy (see Gunn Affidavit, ¶ 6), which defendant, having not opposed the motion, does not dispute. However, as noted above, claimant could have pursued an administrative grievance and CPLR article 78 proceeding, and he could have sought vindication of his constitutional rights through an action in federal court pursuant to 42 U.S.C. § 1983. Thus, this factor weighs against granting the late claim application.
Having considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), the Court finds that although three of the six statutory factors weigh in support of granting claimant's late claim application, the crucial factor of the appearance of merit, the reason for the delay in filing the claim, and the availability of other remedies weigh decisively against granting the motion. Thus, claimant's motion to serve and file this late claim will not be granted.
Accordingly, it is
ORDERED, that claimant's motion number M-95248 is DENIED.
July 9, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Notice of Motion, dated December 7, 2019;
2. Affidavit of Darrell Gunn in Support of Motion to Late File a Claim, sworn to December 7, 2019;
3. Proposed Claim, undated;
4. Affidavit of Service of Darrell Gunn, sworn to January 18, 2020.
1. In his notice of motion, claimant mistakenly states that this motion is brought pursuant to Court of Claims Act § 10 (8), which governs motions for permission to treat a notice of intention as a claim. However, it clear from the substance of the notice of motion and supporting affidavit that claimant seeks permission to file a late claim pursuant to Court of Claims Act § 10 (6).