New York State Court of Claims

New York State Court of Claims
HOOKS v. STATE OF NEW YORK, # 2019-058-035, Claim No. NONE, Motion No. M-93641

Synopsis

Motion for late claim relief denied in part as unnecessary and otherwise denied as lacking merit; Motion for assignment of counsel denied.

Case information

UID: 2019-058-035
Claimant(s): WILLIAM E. HOOKS
Claimant short name: HOOKS
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-93641
Cross-motion number(s):
Judge: CATHERINE E. LEAHY-SCOTT
Claimant's attorney: William E. Hooks, Pro Se
Defendant's attorney: Hon. Letitia James, Attorney General
By: Albert D. DiGiacomo, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 26, 2019
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Pro se Movant William E. Hooks seeks permission to serve and file a late claim. Movant's proposed claim alleges that on December 18, 2017, (1) he was assaulted by another inmate at Mid-State Correctional Facility, (2) he was refused medical treatment following the incident, and (3) his eyeglasses were deliberately broken by employees of the Department of Corrections and Community Supervision ("DOCCS") (see Mot for Permission of [sic] File a Late Claim, Proposed Claim 2, attach).

On March 16, 2018, Movant served a Notice of Intention to File a Claim upon the Attorney General's Office by certified mail return, return receipt requested (see Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, in Opposition 5 & Ex A). The Notice of Intention, like the proposed claim attached to the instant motion, alleges that, on December 18, 2017, (1) Movant was assaulted by another inmate at Mid-State Correctional Facility and that the assault was "a 'set up' by D.O.C.C.S. staff" (2) Movant was denied proper medical treatment following the incident and (3) his eyeglasses were intentionally broken by DOCCS employees (compare Mot for Permission of [sic] File a Late Claim, Proposed Claim, attaches, with Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, in Opposition, Ex A).

On February 26, 2019, Movant filed this motion seeking to serve and file a late claim. Movant served the late claim motion upon the Attorney General's Office by certified mail, return receipt requested on February 25, 2019 (see Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, in Opposition 7). Defendant opposes the motion.

Court of Claims Act 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act 10 [3], [3-b]). When a notice of intention is timely served, the time to file and serve a claim alleging an unintentional tort is extended two years after accrual (see Court of Claims Act 10 [3], [3-a]), whereas the time to serve and file a claim alleging an intentional tort is extended one year following accrual (see id. 10 [3-b]).

With respect to Movant's alleged causes of action for malpractice and medical negligence, Defendant asserts that the motion for late claim relief is unnecessary because Movant timely and properly served a Notice of Intention to File a Claim and his time to file and serve a Claim has not yet expired (see Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, in Opposition 22-26). Specifically, Defendant concedes that Movant served a Notice of Intention to File a Claim upon the Attorney General's Office by certified mail return receipt requested on March 16, 2018 (see Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, in Opposition 5 & Ex A). Consequently, Defendant's time to serve and file a Claim asserting a cause of action for negligence was extended to December 18, 2019--two years after the Claim had accrued (see Court of Claims Act 10 [3], [3-a]). Defendant also avers that the motion and attached verified claim were served on the Attorney General by certified mail, return receipt requested on February 25, 2019 (see Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, in Opposition 7). Thus, to the extent the proposed claim alleges causes of action for medical negligence/medical malpractice, it was timely filed and properly served and filed in accordance with Court of Claims Act 10 (3), (3-a), and 11 (a) (i) and the motion is denied as unnecessary. The same is true for Movant's claim for negligence premised upon DOCCS' failure to protect him from a fellow inmate, a claim which Defendant does not address.

To the extent the proposed claim purports to assert a cause of action for an intentional tort, namely the destruction of Movant's eyeglasses, Defendant contends that late claim relief should be denied as barred by the one-year statute of limitations (see Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, in Opposition 2, 19-21). In particular, Defendant avers that the properly and timely served Notice of Intention to File a Claim extended Movant's time to serve and file a claim alleging an intentional tort until December 18, 2018--one year following the date of accrual. Defendant reasons that because this motion was filed and served in February 2019, the proposed cause of action alleging an intentional tort is time-barred.

The Court has discretion to permit the filing of a late claim pursuant to Court of Claims 10 (6) provided that the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. Although Defendant is correct in arguing that intentional torts are governed by a one-year statute of limitations (see CPLR 215 [3]), Movant's proposed claim specifically alleges a claim for the intentional destruction of property, which is governed by a three-year statue of limitations (see CPLR 214 [4]; Gruia v SUNY Downstate Medical Ctr., UID No. 2017-032-051 [Ct Cl, Hard, J., Oct. 3, 2017]; Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C214: 4 ["An action for damages for injury to property of any kind--real or personal, tangible or intangible--is governed by the three-year period of CPLR 214 (4). It matters not whether the property damage was caused by intentional or negligent conduct" (internal citations omitted)]). Accordingly, because it appears that the proposed claim accrued on December 18, 2017 and the instant application was made on February 26, 2019, to the extent the proposed claim seeks to allege an intentional tort, it is timely.

Upon satisfaction that the proposed claim is timely, the Court will consider six statutory factors set forth in Court of Claims Act 10 (6) as well as other relevant factors in determining whether to grant the late claim (see Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Although the Movant need not satisfy every statutory factor enumerated in Court of Claims Act 10 (6) (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]), the ultimate the burden rests with the Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797, 800-801, 804 [Ct Cl 1977]).

The first factor to be considered is whether the delay in filing the claim was excusable. Movant's excuse for failing to timely file and serve his Claim is that employees of Southport Correctional Facility failed to mail "two manilla envelopes" to the Clerk and to the Attorney General's Office by certified mail, returned receipt requested on December 5, 2018, as directed by Movant (see Mot for Permission of [sic] File a Late Claim, 2, 3). As an initial matter, Movant fails to set forth any facts establishing that the manilla envelopes contained a Claim. Accordingly, Movant fails to proffer a reasonable excuse for the delay in filing his claim (see Michel v State of New York, UID No. 2017-041-048 [Ct Cl, Milano, J., July 10, 2017] [Movant's excuse that correctional facility employees failed to mail his notice of intention to file a claim and/or claim, by certified mail, return receipt requested, as directed by him was not a sufficient excuse for filing a late claim]; see also Young v State of New York, 138 AD3d 1357, 1358 [3d Dept 2016] ["(a)lthough claimant argues that the deficiencies in service were the fault of the prison officials who failed to mail the claim in a timely and proper manner, the record does not substantiate this assertion"]). However, "the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief" (Bay Terrace Coop. Section IV, 55 NY2d at 981).

The next three factors to be addressed--whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant--are interrelated and will be considered together. Movant appears to contend that Defendant had notice of the essential facts and an opportunity to investigate the claim because he had filed a grievance in January 2018 (see Mot for Permission of [sic] File a Late Claim, 2). However, as Defendant aptly notes, Movant fails to present any proof establishing the subject matter of his January 2018 grievance. Consequently, Movant's January 2018 grievance is insufficient to establish that Defendant had notice of the essential facts constituting the proposed claim and an opportunity to investigate. Although Movant timely filed a Notice of Intention to File a Claim which provided notice of some of the facts of the proposed claim, the Court finds, on balance, that these three factors weigh in Defendant's favor.

The last and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for "it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act 10 (6) supported the granting of the [movant's] motion" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011] [internal quotation marks and citation omitted]). It is Movant's burden to show that there is reasonable cause to believe that a valid cause of action exists and that the claim is not patently groundless, frivolous or legally defective and (see Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Although this standard places a heavier burden upon a party who has filed late, it does not require a movant to definitively establish the merit of the claim or to overcome all legal objections before the Court will permit the filing of a late claim (see Matter of Santana, 92 Misc 2d at 11-12).

Defendant contends, among other things, that the proposed claim lacks merit because it fails to comply with particularity requirement of section 11 (b) (see Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, in Opposition 49-50). "[S]ection 11(b) places five specific substantive conditions upon the State's waiver of sovereign immunity by requiring the claim to specify (1) 'the nature of [the claim]'; (2) 'the time when' it arose; (3) the 'place where' it arose; (4) 'the items of damage or injuries claimed to have been sustained'; and (5) 'the total sum claimed'" (Lepkowski v State of New York, 1 NY3d 201, 207 [2003])."Although absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim to enable [the defendant] to investigate and promptly ascertain the existence and extent of its liability" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotation marks and citation omitted]; see Lepkowski, 1 NY3d at 207). The failure to comply with the pleading requirements of Court of Claims Act 11 (b) is a jurisdictional defect mandating dismissal of the Claim (see Lepkowski, 1 NY3d at 209).

With respect to the proposed claim for the intentional destruction of property, Movant merely alleges that "Claimant's eyeglasses was [sic] deliberately broken by Security Staff" (see Mot for Permission of [sic] File a Late Claim, Proposed Claim 2, attach). Notably, the single-sentence allegation fails to allege when the eyeglasses were broken, how the eyeglasses were broken, where the eyeglasses were broken, and what member of the DOCCS staff was responsible for the broken glasses. The Court concludes that Movant's allegations relating to the destruction of his eyeglasses fail to comply with the pleading requirements of Court of Claims Act 11 (b) (see e.g. Gonzalez v State of New York, UID No. 2006-028-542 [Ct Cl, Sise, J., Apr. 12, 2006] ["(f)rom the allegations contained in the Claim, Defendant would know only that at some unspecified location on the premises of Greene Correctional Facility, at some undesignated time on May 14, 2000, (the) (c)laimant tripped and fell, that she was injured, and that she wants to recover $5 million"]). Consequently, to the extent the proposed claim alleges an intentional tort relating to the destruction of Movant's eyeglasses, the motion is denied.

In sum, the motion for late claim relief should be denied in its entirety. To the extent the proposed claim alleges causes of action for negligence, medical negligence, and medical malpractice, it was timely and properly served and filed in accordance with Court of Claims Act 10 (3) and 11(a) (i). Accordingly, the Clerk of the Court is directed to deem the proposed claim attached to Movant's motion papers as a Claim on the date the motion papers were filed (see Standley v State of New York, UID No. 2008-040-016 [Ct Cl, McCarthy, J., Mar. 31, 2008]). However, to the extent the Claim alleges a cause of action for the intentional destruction of Movant's eyeglasses, it is dismissed.

The Clerk is also directed to process the poor person application which accompanied Movant's motion. However, Movant's motion for the assignment of counsel is denied. The Court of Appeals has held there is no constitutional or statutory requirement that indigents be assigned private counsel in civil litigation (Matter of Smiley, 36 NY2d 433, 438 [1975]). In so holding, the Court recognized that unlike a defendant in a criminal proceeding, most civil litigants are not facing a "risk of loss of liberty or grievous forfeiture" (id. at 437). Nevertheless, the Court recognized that "[t]he courts have a broad discretionary power to assign counsel without compensation in a proper case" (id. at 441; see also CPLR 1102). Such a case is one in which an individual is faced with a grievous forfeiture or loss of a fundamental right implicating his or her liberty interests (Planck v County of Schenectady, 51 AD3d 1283, 1283-1284 [3d Dept 2008] [holding that the plaintiff has no right to assignment of counsel in action arising out of his dismissal as a student of the defendant community college]; Wills v City of Troy, 258 AD2d 849, 849 [3d Dept 1999] [holding that the plaintiff was not entitled to the assignment of counsel in case alleging harassment by the defendant police department], lv dismissed 93 NY2d 1000 [1999]). The Court concludes that the instant Claim, which seeks money damages for injuries allegedly sustained from an assault by another inmate, does not implicate Movant's fundamental rights so as to warrant the assignment of counsel (see Dolberry v State of New York, UID No. 2018-040-087 [Ct Cl, McCarthy, J., Oct. 10, 2018]).

Defendant is directed to serve and file its Verified Answer within forty (40) days of the date of filing of this Decision and Order.

Accordingly, it is hereby

ORDERED that Motion No. M-93641 is denied in its entirety; and it is further

ORDERED that the Clerk of the Court is directed to deem the proposed claim attached to Movant's motion papers as a Claim on the date the motion papers were filed; and it is further

ORDERED that, to the extent the Claim alleges a cause of action for the intentional destruction of Movant's eyeglasses, it is dismissed; and it is further

ORDERED that the Clerk of the Court is directed to process the poor person application which accompanied Movant's motion; and it is further

ORDERED that Movant's motion for the assignment of counsel is denied; and it is further

ORDERED that Defendant is directed to serve and file its Verified Answer within forty (40) days of the date of filing of this Decision and Order.

November 26, 2019

Albany, New York

CATHERINE E. LEAHY-SCOTT

Judge of the Court of Claims

The Court has considered the following in deciding this motion:

(1) Motion for Permission of File a Late Claim, filed February 26, 2019

(2) Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, in Opposition, filed November 15, 2019

(3) Movant's letter dated June 3, 2016

(4) Movant's letter dated October 24, 2019