Motion for late claim relief denied. Proposed claim alleged that claimant was assaulted by defendant's employees. Cause of action sounding in the intentional tort of assault was beyond the one-year statue of limitations. Late claim relief not available for State constitutional tort cause of action because statutory factors, including the absence of merit, weighed against granting late claim relief.
|Claimant short name:||CURRY|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||JEROME CURRY, Pro se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN, Attorney General
of the State of New York
By: Heather R. Rubinstein, 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 15, 2015. Defendant opposes the motion.
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 claimant was "maliciously and viciously assaulted by the Central Emergency Response Team [CERT]" (Motion for Permission to File a Late Claim, Proposed Claim, ¶ 4). The proposed claim alleges the following. While being escorted by two CERT officers on June 15, 2015, claimant raised his head to answer a question and was then kicked in the testicles and punched several times in the lower back while he was on the floor. Claimant was thereafter escorted back to his cell, and his requests for sick call were denied for five days because the facility was on lock down. He reported the alleged assault on June 22, 2015 at nursing sick call. Claimant filed an inmate grievance about the incident on June 21, 2015, which was eventually accepted in part by CORC on July 6, 2016. The proposed claim asserts that claimant filed and served a notice of intention to file a claim about the alleged assault on September 15, 2015,(1) and it requests compensation for injuries, pain and discomfort claimant "suffered as a result of the violation of Claimant's New York State Constitutional right" (id., ¶ 16).
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 August 4, 2017, which was well more than one year after the June 15, 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, 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), and the motion was filed less than three years following the June 15, 2015 accrual date (see Brown v State of New York, 250 AD2d 314, 318 [3d Dept 1998]), the motion is timely with regard to that possible theory. Thus, the Court's consideration of claimant's late claim motion will be confined to that proposed cause of action.
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 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." 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 asserts that the delay in filing the claim is excusable because an attorney investigated the claim and declined "at the last minute" to represent claimant, leaving him with little time to conduct research and prosecute the claim (see Motion for Permission to File a Late Claim, ¶ 2). In support, claimant submits correspondence from the attorney dated June 7, 2016 declining representation (id., Nathanson Correspondence, dated June 7, 2016). To the extent that claimant's unsworn assertion would be of sufficient evidentiary value, it is insufficient to persuade the Court that the delay was excusable because the attorney's declination of representation, assuming it to be an adequate excuse, is dated June 2016, nine months after the September 14, 2015 deadline to serve a notice of intention or claim. Thus, claimant has not demonstrated that his ability to timely file and serve the claim was affected by the attorney's conduct. Thus, claimant's lack of an acceptable excuse for the failure to timely file the claim, weighs against his application for late claim relief.
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]). As noted above, claimant contends that he served a notice of intention to file a claim on the Attorney General on September 15, 2015, and therefore that defendant had notice of the essential facts constituting the claim. Defendant does not address these contentions, and the absence of any argument from defendant regarding these factors weighs in favor of the motion.
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]). In general, to establish the merit of the proposed late claim, claimant need not demonstrate a likelihood that he will prevail on his claim, but the proposed claim may not be legally defective (see Matter of Santana v New York State Thruway Auth., supra at 11). Should a proposed claim not satisfy the pleading requirements of Court of Claims Act § 11 (b), which is a fatal jurisdictional defect that would require dismissal of the claim (see Lepkowski v State of New York, 1 NY3d 201, 209 ; Kolnacki v State of New York, 8 NY3d 277, 281 ; see also Doe v State of New York, UID No. 2013-048-125 [Ct Cl, Bruening, J., Dec. 19, 2013]), it would be legally defective and lacking in merit (White v State of New York, UID No. 2015-038-501 [Ct Cl, DeBow, J., Jan. 2, 2015]).
Court of Claims Act § 11 (b) requires that "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed." While the proposed claim alleges that the incident occurred on June 15, 2015, it does not plead the time of day of the incident. Further, although the proposed claim states that claimant's address is Green Haven Correctional Facility, it does not plead the correctional facility, or any location therein, where the alleged incident occurred. Finally, the proposed claim fails to plead the nature of the alleged constitutional tort. Thus, the claim fails to conform to the pleading requirements in Court of Claims Act § 11 (b), rendering it jurisdictionally defective (see Lepkowski v State of New York, 1 NY3d at 209 ; Kolnacki v State of New York, 8 NY3d at 281).
Moreover, even if the pleading adequately satisfied Court of Claims Act § 11 (b), the proposed State constitutional tort is legally meritless because such a cause of action is available 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, the proposed claim alleges that claimant used the grievance process, and thus it appears that claimant had an alternative administrative remedy to vindicate the claimed constitutional rights. Claimant also tried the available remedy of a timely claim seeking damages for the alleged assault and excessive force allegedly committed by the CERT officers. In sum, the crucial factor of the appearance of merit weighs heavily against claimant's motion.
Claimant's conclusory statement that he has no available remedy for the disregard of his State constitutional due process rights is unsupported by any argument and is therefore unpersuasive.
Having considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), the Court finds that three of the six statutory factors, including the crucial factor of appearance of merit, weigh against granting the motion for late claim relief on the proposed State constitutional tort claim. Thus, the motion to serve and file this proposed late claim will denied.
Accordingly, it is
ORDERED, that claimant's motion number M-90864 is DENIED.
January 10, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Notice of Motion, dated August 2, 2017;
(2) Motion for Permission to File a Late Claim, dated August 2, 2017, with Attachments (Notice
of Intention to File a Claim, sworn to September 15, 2015; Proposed Claim; Correspondence
of Eugene B. Nathanson, Esq., dated June 7, 2016; Certified Medical Records);
(3) Affirmation of Heather R. Rubinstein, AAG, in Opposition to Motion for Leave to File a Late
Claim, dated September 19, 2017, with Exhibit 1;
(4) Reply to Affirmation in Opposition to Motion for Permission to File Late Claim of Jerome Curry, verified October 17, 2017, with Exhibits A-B.
1. The parties dispute whether the notice of intention was received on September 15 or September 16, 2015, but the argument is unnecessary. It is uncontroverted that the proposed claim arrived on June 15, 2015, or no later than September 14, 2015 (by operation of General Construction Law § 20 because September 13, 2015, which is 90 days after the accrual date, fell on a Sunday), as required by Court of Claims Act §§ 10 (3), (3-b).