Late claim motion, Claimant given tainted food while incarcerated at the Suffolk County Correctional Facility.
|Claimant short name:||DIETZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Desiree Dietz, Pro Se|
|Defendant's attorney:||Hon. Eric T. Schneiderman, Attorney General
By: Kimberly A. Kinirons, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 23, 2018|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion; Claimant's Affidavit in Support with annexed Exhibits 1-3; Claimant's Poor Person Application; and Defendant's Affirmation in Opposition.
Claimant, Desiree Dietz, a pro se inmate, has brought this motion seeking permission to file a late claim pursuant to Court of Claims Act (CCA) § 10(6). Defendant, the State of New York, has opposed this application.
Claimant alleges that on October 28, 2015 she ingested food that was tainted with another inmate's feces while she was incarcerated at the Suffolk County Correctional Facility.
It is well settled that "[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 ). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10(6) (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.
The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
Claimant has failed to establish that the claim is meritorious. Suffolk County Correctional Facility is not included in the designation of state correctional facilities set forth in Part 100, Volume 7 of the Codes, Rules and Regulations of the State of New York, and it is not owned, operated or maintained by the State of New York. The Court of Claims is a court of limited jurisdiction wherein actions are primarily brought seeking monetary damages against the State of New York (see CCA § 9). Thus, this Court does not have jurisdiction over claims brought against non-State entities such as the Suffolk County Correctional Facility (see generally Ross v County of Suffolk, 84 AD3d 775 [2d Dept 2011]; Catterson v Suffolk County Dept. of Health Servs., 49 AD3d 792 [2d Dept 2008]).
Therefore, based upon the foregoing, claimant's motion to file a late claim is denied.
March 23, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims