Late claim motion, Claimant alleges that he was harassed and retaliated against due to his religious beliefs while incarcerated at the Five Points Correctional Facility. Intentional torts statute of limitations expired. Also correction law 610 provides claim to be brought in Supreme Court.
|Claimant short name:||MARTINEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Juan Martinez, Pro Se|
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: Elizabeth A. Gavin, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 24, 2018|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Claimant's "Affidavit in Support of Notice of Motion File a Late Claim" with annexed Exhibits; and Defendant's Affirmation in Opposition with annexed Exhibits.
Claimant, Juan Martinez, 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.
The proposed claim states that the claim is for the violation of claimant's New York State Constitutional rights under Article 1, § 3. Claimant alleges that he has been harassed and retaliated against by various correction officers due to his religious beliefs. He alleges that these instances of harassment occurred on several occasions beginning on October 14, 2015 and continuing up until he served his notice of intention to file a claim upon defendant on December 9, 2015.
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.
Claimant does not offer any legally acceptable excuse for the delay in filing the claim. It is well settled that ignorance of the law is not an acceptable excuse for the delay in filing a claim (Borawski v State of New York, 128 AD3d 628 [2d Dept 2015]; Olsen v State of New York, 45 AD3d 824 [2d Dept 2007]). The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. Claimant served a notice of intention to file a claim upon defendant on December 9, 2015. The allegations raised in the notice of intention only concern events which took place between October 12, 2015 and December 9, 2015. Consequently, defendant was made aware of those claims. It is unclear as to whether any formal grievance process was commenced by claimant concerning these claims as well as those mentioned in his letters to the facility. 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. It is well settled that there is no independent common-law cause of action to recover damages for harassment in the State of New York (Wells v Town of Lenox, 110 AD3d 1192 [3d Dept 2013]; Monreal v New York State Department of Health, 38 AD3d 1118 [3d Dept 2007]; Daulat v Helms Bros. Inc., 18 AD3d 802 [2d Dept 2005]). Corrections Law § 610 provides that claims based on freedom of worship may be asserted "in the supreme court of the district where [the correctional] institution is situated," which is the specific court the Legislature "authorized and empowered to enforce the provisions of this section" (Oppenheimer v State of New York, 152 AD3d 1006 [3d Dept 2017]). By its terms, the statute creates a cause of action that may only be asserted in Supreme Court and not the Court of Claims (id.).
Additionally, the Court of Claims should not imply a state constitutional remedy when an alternative remedy is available to claimant (id.; see also Peterec v State of New York, 124 AD3d 858 [2d Dept 2015]; Deleon v State of New York, 64 AD3d 840 [3d Dept 2009]; Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]; Martinez v City of Schenectady, 97 NY2d 78 ). Since claimant could assert his claim as a federal constitutional claim in federal court or in State Supreme Court under Correction Law § 610, a state constitutional remedy is not warranted (Oppenheimer v State of New York, 152 AD3d 1006 [3d Dept 2017]).
Further, to the extent claimant is attempting to bring claims based on intentional torts which occurred between October 12, 2015 and December 9, 2015, claimant's motion was presented after the expiration of the applicable one-year statute of limitations period contained within CPLR 215. Accordingly, it is well-settled that this Court is without authority to grant that portion of claimant's motion (Miles v City Univ. of N.Y., 126 AD3d 609 [1st Dept 2015]; Dolberry v State of New York, 71 AD3d 948 [2d Dept 2010]; Roberts v City Univ of N.Y., 41 AD3d 825 [2d Dept 2007]; Crum & Foster Ins. Co. v State of New York, 25 AD3d 643 [2d Dept 2006]).
Lastly, the Court cannot permit the filing of a claim which does not meet the jurisdictional requirements of Court of Claims Act § 11 (b). Court of Claims Act § 11 (b) requires, inter alia, that the claim state the time when the incident occurred. To the extent claimant is attempting to put forth claims that occurred on dates other than October 14, 2015, November 24, 2015 and December 1, 2015, the claim runs afoul of this jurisdictional requirement (Lepkowski v State of New York, 1 NY3d 201 ).
Therefore, based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act § 10 (6), claimant's motion is denied.
July 24, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims