Application to file late claim is denied where claimant served a timely notice of intention to file claim with respect to inmate-on-inmate assault cause of action and where allegations fail to provide cause to believe a valid cause of action for wrongful confinement may exist; application for assignment of counsel and for poor person status is denied.
|Claimant(s):||JAVON GONZALEZ, 00-A-7067|
|Claimant short name:||GONZALEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption is amended to state the proper defendant.|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||JAVON GONZALEZ
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
By: Anthony Rotondi, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 27, 2017|
|See also (multicaptioned case)|
Claimant moves for permission to file a late claim pursuant to Court of Claims Act 10 (6). Defendant opposes the motion. Claimant further requests poor person status and assignment of counsel to represent him without charge.
Although claimant's application for late claim relief references various assaults at various locations, the Court limits its late claim consideration to the allegations of the proposed claim.
The proposed claim alleges that on August 1, 2016, claimant, while confined at Clinton Correctional Facility, was "assaulted by two unidentified inmates, who claimant did not know or had prior problems with," due to defendant's negligence.
Defendant, in its opposition to claimant's application, concedes that claimant properly served, on October 31, 2016, a timely notice of intention to file a claim with respect to the claimant's negligence cause of action alleging an inmate-on-inmate assault of claimant on August 1, 2016. The Court therefore denies late claim relief, with respect to claimant's negligence cause of action alleging an inmate-on-inmate assault of claimant on August 1, 2016, because claimant's time to file and serve a claim asserting the proposed negligence cause of action has not yet expired.
The proposed claim further alleges that claimant was "unlawfully" confined from August 1, 2016 through August 26, 2016, without any explanation as to the purported administrative or disciplinary basis for the "unreasonable confinement."
The claimant's aforementioned notice of intention to file a claim with respect to the claimant's negligence cause of action, alleging an inmate-on-inmate assault of claimant on August 1, 2016, served on defendant on October 31, 2016, made no allegations with respect to the proposed claim's unlawful confinement cause of action.
Court of Claims Act 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time 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."
Claimant was allegedly released from confinement, and his claim accrued, on or about August 26, 2016 (see Santiago v City of Rochester, 19 AD3d 1061, 1062 [4th Dept 2005], lv denied 5 NY3d 710 : claim for wrongful confinement accrues on "the date on which [claimant's] confinement terminated"). Claimant served his late claim application on August 17, 2017, beyond expiration of the ninety day filing and service period for an intentional tort set forth in Court of Claims Act 10 (3-b), but within the one year statute of limitations period set forth in CPLR Article 2, section 215.
In determining the application, Court of Claims Act 10 (6) provides that:
"[T]he court shall 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 claimant has any other available remedy."
Recognizing that "it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion" (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]), claimant's application to file a late claim is denied.
Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 833-834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).
To establish that he was wrongfully confined, claimant must prove that "(1) the defendant intended to confine him, (2) the [claimant] was conscious of the confinement, (3) the [claimant] did not consent to the confinement and (4) the confinement was not otherwise privileged" (Broughton v State of New York, 37 NY2d 451, 456 , cert denied sub nom. Schanbarger v Kellogg, 423 US 929; Krzyzak v Schaefer, 52 AD3d 979 [3d Dept 2008]).
The proposed claim fails to state whether claimant was confined for a disciplinary reason or whether claimant was confined for his own protection or for some other unstated reason. The proposed claim fails to allege any facts supporting a cause of action for unlawful confinement and thus lacks the appearance of merit.
The Court denies the claimant's application to serve and file a late wrongful confinement claim.
Claimant's request for appointment of an attorney to represent him is denied. While it is "clear that private litigants have no absolute right to assigned counsel, it also recognized that courts have discretion to provide uncompensated representation for indigent civil litigants in a proper case" (Wills v City of Troy, 258 AD2d 849 [3d Dept 1999]; see CPLR 1102 [a]). A proper case may include proceedings where "there is the danger of grievous forfeiture or the deprivation of a fundamental liberty right" (Morgenthau v Garcia, 148 Misc 2d 900, 903 [Sup Ct, NY County 1990]).
In a civil action "there is no absolute right to assigned counsel; whether in a particular case counsel shall be assigned lies instead in the discretion of the court" Matter of Smiley, 36 NY2d 433, 438 ; Planck v County of Schenectady, 51 AD3d 1283 [3d Dept 2008]).
This is not a proper case for appointment of counsel since claimant seeks money damages for personal injuries allegedly caused by defendant. Such cases, if they appear meritorious, are typically handled by private attorneys, without cost to the litigant, on a contingent fee basis.
Claimant has not shown that a "danger of grievous forfeiture or the deprivation of a fundamental liberty right" (Morgenthau, 148 Misc 2d at 903) exists if he proceeds without assigned counsel.
To the extent claimant's motion is considered an application for poor person relief in general, it must be denied because notice was not given to the appropriate county attorney. Notice of a poor person application is required to be given to the appropriate county attorney since there are "no available statutory provisions which would support [a] Court of Claims assessment of any [poor person] expenses against the State" (Mapp v State of New York, 69 AD2d 911, 912 [3d Dept 1979]).
November 27, 2017
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Claimant's "Permission to File a Late Claim," filed September 11, 2017;
2. Affidavit of Javon Gonzalez, sworn to September 1, 2017, and attached exhibits, including proposed claim;
3. Claimant's Notice of Motion, filed September 13, 2017, and attached exhibit;
4. Affirmation of Anthony Rotondi, dated October 3, 2017, and attached exhibit;
5. Reply of Javon Gonzalez, filed October 16, 2017.