|Claimant short name:||ROSA|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Artemio Rosa, Pro Se|
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Joshua Lee, AAG
|Third-party defendant's attorney:|
|Signature date:||August 12, 2020|
|See also (multicaptioned case)|
Movant moves for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). The late claim application asserts that movant was assaulted by correction officers on October 16, 2018 and December 9, 2018 at the George R. Vierno Center on Rikers Island in the City of New York. Defendant opposes the motion.
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept. 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10 ). These factors are: (1) whether the delay in filing the claim was excusable; (2) whether the state had notice of the essential facts constituting the claim; (3) whether the state had an opportunity to investigate the circumstances underlying the claim; (4) whether the state was substantially prejudiced; (5) whether the claimant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10 ). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 ). Although "[t]he movant need not satisfy every statutory element[,] . . . the burden rests with the movant to persuade the court to grant his or her late claim motion" (Frederick v State of New York, 23 Misc 3d 1008, 1011 [Ct Cl 2009]).
Movant does not address any of the six enumerated factors in the instant late claim application. Defendant argues that the late claim application should be denied because the Court of Claims lacks subject matter jurisdiction over the claims asserted in the late claim application. The Court agrees.
The George R. Vierno Center is a facility located on Rikers Island, which is owned and operated by the Department of Corrections of the City of New York (Franklyn v New York City Dept. of Corrections, UID No. 2018-049-030 [Ct Cl, Weinstein, J., Dec. 24, 2018]; George v State of New York, UID No. 2018-032-090 [Ct Cl, Hard, J., Dec. 26, 2018]). The Court of Claims has jurisdiction only over claims against the State of New York and a limited number of other entities specifically enumerated by statute (see Court of Claims Act § 9; NY Const, art VI, § 9). The Court of Claims does not have jurisdiction over claims arising from actions that took place on Rikers Island, as it is operated by the City of New York, not the State of New York (Ogle v State of New York, 191 AD2d 878, 879 [3d Dept. 1993]; Elleby v State of New York, UID No. 2018-045-019 [Ct Cl, Lopez-Summa, J., June 1, 2018]). As the Court lacks jurisdiction over the causes of action asserted in the late claim application, movant has failed to establish the appearance of merit of the proposed claim.
Based upon the foregoing, movant's late claim application (M-95372) is DENIED.
August 12, 2020
Albany , New York
JUDITH A. HARD
Judge of the Court of Claims
1. Notice for Permission to File Late Claim, filed on March 4, 2020.
2. Affirmation in Opposition, affirmed by Joshua Lee, AAG on July 2, 2020.