Claimant's motion for late claim relief denied. The proposed claim patently lacked merit, the delay in filing the claim was not excusable, and claimant had other remedies available to him.
|Claimant(s):||DARRELL GUNN, 03-B-2443|
|Claimant short name:||GUNN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||DARRELL GUNN, Pro se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||January 31, 2020|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, moves for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim alleges that claimant's state constitutional rights were violated when the heat was turned off at Green Haven Correctional Facility (CF) between April 15, 2016 and May 15, 2016 and again between April 15, 2017 and May 15, 2017. Defendant has not responded to the motion.(1)
The proposed claim alleges that on April 15, 2016, defendant's agents turned off the heat at Green Haven CF even though it was required to remain on until May 15, 2016 (see Proposed Claim, ¶ 2), and that during the period from April 15 to May 15, 2016, correction officers left windows open when the temperature was below the "minimum standard" of 68 degrees Fahrenheit (id. at ¶ 5). The proposed claim alleges that defendant's agents again turned off the heat at Green Haven CF on April 15, 2017 and that, as a result, claimant was "[exposed] . . . to bitter cold temperatures" from April 15, 2017 through May 15, 2017 (id. at ¶ 6). The proposed claim alleges that daytime temperatures were between 40 and 45 degrees Fahrenheit and in the low 30s at night during that period (see id. at ¶ 7), and that it was colder inside Green Haven CF than it was outside because the building lacked insulation and other structures to "keep the frigid cold air out" (id. at ¶ 8). The proposed claim alleges that the cold conditions inside Green Haven CF during the two periods alleged prevented claiming from performing activities of daily life including eating, reading, writing, sleeping, filing grievances, and engaging in other legal work, and that he has experienced physical and emotional injuries as a result (see id. at ¶¶ 3-5, 11-12). The proposed claim alleges that the actions of defendant's agents violated Department of Corrections and Community Supervision (DOCCS) Directive No. 4889 and the state and federal constitutions (see id. at ¶ 16). The proposed claim alleges that it "is a New York State constitution claim" and seeks $100,000 in damages for claimant's alleged injuries (id. at ¶ 20).
As an initial matter, claimant's motion for late claim relief is untimely insofar as it alleges a cause of action sounding in state constitutional tort with respect to the period between April 15, 2016 and May 15, 2016. A motion seeking late claim relief must be 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 [CPLR]" (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 Berger v State of New York, 171 AD2d 713, 716 [2d Dept 1991]; see also 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 ). A state constitutional tort is subject to a three-year statute of limitations under CPLR 214 (5), and this motion was filed on November 18, 2019, more than three years after the May 15, 2016 accrual date for the alleged 2016 violation. Thus, the motion is untimely with regard to the proposed state constitutional claim for the period of April 15, 2016 to May 15, 2016, and it must be denied on that basis.
Turning to the remainder of claimant's late claim motion, in deciding a motion to file a late claim, the Court is required to consider the following 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"
(Court of Claims Act § 10 ). 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 & Firemen's Retirement Sys., 55 NY2d 979, 981 ), and the weight accorded the various factors is a matter within the discretion of the Court. 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]).
In support of his motion for late claim relief, claimant argues that the delay in filing the claim was excusable because he is a lay person and his incarceration prevented him from conferring with legal counsel or accessing legal reference materials (see Gunn Affidavit, ¶ 2). Claimant further asserts that his delay was excusable because he has been denied access to the law library and legal materials, his eyeglasses were confiscated by a correction officer, he was being housed in a psychiatric unit on a hunger strike, and he had undergone three years of physical therapy while at Green Haven CF (see id.). As noted above, defendant has not responded to the motion for late claim relief. However, it is well settled that neither claimant's "ignorance of the law nor his confinement in a correctional facility provide an acceptable excuse" for failing to timely file a claim in the Court of Claims (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; see Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 ; see Matter of Powell v State of New York, 187 AD2d 848, 849 [3d Dept 1992]), and claimant has provided no evidence as to how long he was housed in the psychiatric unit or how his three years of physical therapy affected his ability to timely file this claim. Thus, this factor weighs against granting claimant's motion for late claim relief.
The next three factors - whether the State had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim, and whether claimant's failure to file or serve upon the attorney general a timely claim or notice of intention resulted in substantial prejudice to the State - are closed 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]). Claimant argues that the State had notice of the essential facts of this claim because he filed grievances related to the alleged incidents (see Gunn Affidavit, ¶ 3), that the State could not have been prejudiced by the delay because it "was well aware of the facts," and that DOCCS "investigated this incident through its employees, many of who[m] are still available to the Attorney General to be contacted with respect to this incident" (id. at 5). Because defendant has not responded to the motion and thus has not disputed any of these factors, they weigh in favor of claimant's late claim application.
Turning next to the appearance of merit of the proposed claim, this factor is often decisive because, although Court of Claims Act § 10 (6) reflects a legislative determination that "litigants with meritorious claims [should] be afforded their day in court" (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]; see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]), the courts have recognized that a late claim application should not be granted where a claim is "legally deficient . . . [and] would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" (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, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he or she will prevail on the claim. Rather, a proposed claim has the appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not "patently groundless, frivolous, or legally defective," and (2) all of the evidence submitted on the motion establishes "reasonable cause to believe that a valid cause of action exists" (Matter of Santana, 92 Misc 2d at 11).
Claimant argues in support of his motion for late claim relief that the proposed claim is meritorious because it "is based upon prison officials not following their own rules. Prison officials making up their own rules. Prison officials taking advantage of impoverished citizens" (Gunn Affidavit, ¶ 4). As noted above, defendant has not responded to the motion.
To the extent that the proposed claim alleges violations of claimant's federal constitution rights and a DOCCS Directive, it patently lacks merit. The Court of Claims lacks subject matter jurisdiction over alleged violations of a claimant's rights under the United States Constitution, which must be brought in federal or state court pursuant to 42 USC § 1983 (see Brown v State of New York, 89 NY2d 172, 185 ; Zagarella v State of New York, 149 AD2d 503, 504 [2d Dept 1989]; Ferrer v State of New York, 172 Misc 2d 1, 5 [Ct Cl 1996]), and an alleged violation of a DOCCS Directive does not give rise to a cause of action for money damages in the Court of Claims but rather is properly addressed through the inmate institutional grievance process and, if necessary, a CPLR article 78 proceeding (see Johnson v State of New York, UID No. 2015-038-537 [Ct Cl, DeBow, J., June 12, 2015]; see also Battee v State of New York, UID No. 2019-054-002 [Ct Cl, Rivera, J., Jan. 10, 2019]). With respect to the alleged violation of claimant's state constitutional rights in connection with the April 15, 2017 to May 15, 2017 period, it is well settled that a cause of action sounding in state constitutional tort may be pursued only when no other remedy is available to enforce the claimed constitutional right (see Brown 89 NY2d at 192 ; Martinez v City of Schenectady, 97 NY2d 78, 83-84 ; Oppenheimer v State of New York, 152 AD3d 1006, 1008-1009 [3d Dept 2017]), and is thus unavailable here inasmuch as the alleged violations could have been addressed, as discussed above, through the inmate grievance process and, if necessary, a CPLR article 78 proceeding, or through a 42 USC § 1983 suit in federal court (see Rhodes v Chapman, 452 US 337, 347  [42 USC § 1983 claims alleging violation of the Eighth Amendment to the United States Constitution may be maintained where conditions "deprive inmates of the minimal civilized measure of life's necessities"]).(2) Because the proposed claim fails to allege any actionable claim in this Court, the crucial factor of the appearance of merit weighs decisively against granting claimant's late claim application.
Finally, claimant asserts that he has no other available State remedy, which defendant, having not responded to the motion, does not dispute. However, as noted above, claimant could have pursued a CPLR article 78 proceeding in Supreme Court or a 42 USC § 1983 claim, and therefore, this factor weighs against granting claimant's application for late claim relief.
Having considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), the Court finds that although three of the six statutory factors weigh in support of granting claimant's late claim application, the crucial factor of the appearance of merit, as well as the reason for the delay in filing the claim and the availability of other remedies, weigh decisively against granting the motion. Thus, claimant's motion to serve and file this late claim will not be granted.
Accordingly, it is
ORDERED, that claimant's motion number M-94930 is DENIED.
January 31, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Notice of Motion, dated November 12, 2019;
2. Affidavit of Darrell Gunn in Support of Motion to Late File a Claim, sworn to November 12, 2019;
3. Proposed Claim, dated November 12, 2019;
4. Affidavit of Service by Mail of Darrell Gunn, sworn to November 12, 2019.
1. Although the affidavit of service that was filed with the Court avers that claimant served the motion papers on defendant, it left blank the date of such service (see Affidavit of Service, sworn to November 12, 2019).
2. To the extent that claimant is alleging that his rights were violated under Article I, section 1 of the State Constitution, which prohibits the disenfranchisement or deprivation of rights or privileges of citizens of this State (see Proposed Claim, ¶ 16), it is clearly inapplicable to the facts as alleged in the claim.