Motion for late claim relief denied. Motion untimely with respect to causes of action for assault and battery. With respect to the remaining causes of action, although three of the statutory factors weighed in favor of granting the motion, claimant failed to demonstrate a reasonable excuse for the delay in filing the claim, the appearance of merit, or the lack of another available remedy.
|Claimant short name:||E.S.|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||E.S., Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Aaron J. Marcus, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 5, 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 was sexually assaulted and that his religious rights were violated during searches in March and April 2019 and in March 2020. Defendant opposes the motion.
The proposed claim alleges that on March 6, 2019, claimant was subjected to a search by a member of the Office of Special Investigations (OSI) K-9 unit, and that during the search, the dog handler used the dog's nose to sexually assault claimant (see Proposed Claim, ¶¶ 4-8). The proposed claim further alleges that claimant was ordered to allow the dog to sniff his dreadlocks, but that he refused because according to his Rastafarian religion, his dreadlocks were not to be touched (see id. at ¶¶ 3, 8-9). The proposed claim alleges that claimant filed grievances and complaints regarding the alleged sexual assault "by the K-9 unit" (id. at ¶ 10). The proposed claim further alleges that on April 22, 2019, during another search by the OSI K-9 unit, the dog used its claws to tear and rip claimant's dreadlocks - which also violated his religion - despite claimant's efforts to avoid his hair being touched, and that claimant "was immediately handcuffed and taken to be searched" (id. at ¶¶ 11-12; see id. at ¶ 3). The proposed claim alleges that claimant was again sexually assaulted during a search by the K-9 unit on March 12, 2020, despite informing the dog handler that he was afraid and did not want the dog to touch him (see id. at ¶¶ 13-14).
The proposed claim alleges that claimant was sexually assaulted by defendant's agents through the use of the K-9 unit dog and that his religious rights were violated when the dog touched and ripped his dreadlocks during the three searches detailed in the proposed claim, and that these violations occurred due to the State's negligence in failing to implement policies, procedures, and directives related to searches by the K-9 unit (see id. at ¶¶ 15-17) and the State's "fail[ure] to ensure the K-9 [unit was] properly and adequately trained" (id. at ¶ 18). The proposed claim alleges that claimant has suffered mental and emotional injuries as a result of defendant's negligence and seeks $750,000 in damages (see id. at ¶¶ 19-22).
As an initial matter, claimant's motion for late claim relief is untimely insofar as it alleges a cause of action sounding in the intentional torts of assault and battery related to the March 6, 2019 incident. 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 ). Causes of action sounding in assault and battery are subject to a one-year statute of limitations pursuant to CPLR 215 (3). Thus, to the extent that the proposed claim alleges causes of action for assault and battery related to the search on March 6, 2019, the instant late claim motion is untimely, having been filed over one year later, on July 6, 2020.(2)
Turning to the remainder of the late claim motion, in deciding a motion for late claim relief, 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.
In support of his late claim motion, claimant argues that the delay in filing this claim was excusable because, although he "is aware of the filing period set forth in the Court of Claims Act," he was unable to file this claim in a timely manner because he has glaucoma, a visual impairment that "causes his eyes to be extremely sensitive to light, where he experiences double blurry vision, eye pain and discomfort, [and] chronic migraine headaches, leaving him unable to see" (E.S. Affidavit, ¶¶ 1-2). Claimant goes on to explain that although he has had a prescription for tinted glasses to protect his eyes since September 2014, his tinted glasses were broken in November 2018, that his efforts to obtain new glasses from various correctional facilities were unsuccessful despite numerous requests, grievances, and consultations with eye doctors, and that ultimately his wife purchased tinted glasses for him in February 2020, which enabled claimant to read and see sufficiently to file the instant motion (see id. at ¶¶ 3-22, Exhibits A-Q). Defendant argues in opposition that the exhibits attached to the late claim application show that claimant "draft[ed] various documents within 90 days of the March 6, 2019 and April 22, 2019 incidents" and that "[h]is motion fails to prove exactly how he was prevented from filing and serving a claim or notice of intention to file [a] claim in a timely manner," and thus the delay is not excusable (Marcus Affirmation, ¶ 10).
As defendant correctly observes, the late claim application is appended with exhibits consisting of documentation of claimant's glaucoma and use of tinted glasses (see E.S. Affidavit, Exhibits A-D, G, M, N), and numerous grievances related to claimant's eye condition, glasses, and other medical issues that were drafted by claimant between January 30, 2019 and February 2020, including several grievances submitted in March and April 2019, when two of the searches that are the subject of the proposed claim allegedly occurred (see id., Exhibits E-F, H-L, N, O, Q). Claimant's own submissions thus demonstrate that he was able to file grievances on a regular basis during the time when he allegedly was unable to file and serve the instant claim, and they undermine his position that the delay in filing this claim was excusable. Accordingly, claimant has "failed to provide any real excuse for his failure to file [this claim in a timely manner], much less a reasonable one," and this factor weighs against granting the late claim application (Turner v State of New York, 40 AD2d 923, 923 [3d Dept 1972]; see Matter of Roberts v County of Rensselaer, 16 AD3d 829, 830 [3d Dept 2005] [petitioner failed to establish "a reasonable excuse for the delay" in filing his claim where "the record contain(ed) no affidavit by petitioner or any medical evidence to support his contention that" his physical condition "rendered him unable to timely file the notice of claim"]).
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 closely 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]). In support of his late claim motion, claimant argues that his failure to timely file this claim "could not have cause[d] a prejudice to the [S]tate, since the [S]tate had prior notice of the issues" set forth in the proposed claim, and that the State "investigated the claims through its employees, who are still available to the Attorney General with respect to the incidents alleged" in the proposed claim (E.S. Affidavit, ¶ 23). Defendant states that it will "concede these points to [claimant] with regard to" the April 22, 2019 incident inasmuch as claimant was issued an inmate misbehavior report (IMR) in connection with the April 22, 2019 incident and was found guilty of violating certain disciplinary rules following a disciplinary hearing (Marcus Affidavit, ¶ 11; see id., Exhibit B).(3) Accordingly, these three factors weigh in favor of claimant's motion.
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).
In his affidavit in support of this late claim motion, claimant has failed to address the appearance of merit of the proposed claim. In opposition to the motion, defendant argues that the proposed claim lacks the appearance of merit because it does not allege any injury as a result of the incidents alleged on April 22, 2019 and March 12, 2020, the State cannot be liable for any alleged sexual assault by its employees under the doctrine of respondeat superior because such an act constitutes a departure from the scope of employment, and because the Court lacks jurisdiction over the cause of action for violation of claimant's religious rights, which must be brought in New York State Supreme Court pursuant to Correction Law § 610 (1) (see Marcus Affirmation, ¶¶ 13-19). Defendant further argues that the proposed claim lacks the appearance of merit because claimant has failed to allege the place where the claim arose, as required under Court of Claims Act § 11 (b) (see id. at ¶ 20).
As noted above, claimant has failed to address the appearance of merit of the proposed claim, and thus has failed to meet his burden on this late claim motion (see generally McLoughlin v State of New York, 63 Misc 3d 1216[A], 2019 NY Slip Op 50547[U], *1 [Ct Cl 2019] ["a party seeking to file a late claim has the burden of establishing an appearance of merit of the proposed claim"]).(4) Moreover, even if claimant had argued that the proposed claim had the appearance of merit, this factor would weigh against the granting of the motion, for the reasons that follow.
A motion for late claim relief must be accompanied by a proposed claim "containing all of the information set forth in [Court of Claims Act § 11]" (Court of Claims Act § 10 ; see Gega v State of New York, UID No. 2018-038-600 [Ct Cl, DeBow, J., Dec. 12, 2018]). Court of Claims Act § 11 (b) requires, among other things, that "[t]he claim shall state the time when and place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and . . . the total sum claimed" (emphasis added). The pleading must set forth sufficient facts to satisfy each of the pleading requirements set forth in Court of Claims Act § 11 (b) (see Kolnacki v State of New York, 8 NY3d 277, 280-281 , rearg denied 8 NY3d 994 ), and the failure to do so is a fatal defect in subject matter jurisdiction requiring dismissal of the claim (see Lepkowski v State of New York, 1 NY3d 201, 209 ; see also Kolnacki, 8 NY3d at 281). The purpose of the pleading requirements of Court of Claims Act § 11 (b) is "to enable the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances" (Lepkowski, 1 NY3d at 207 [internal quotation marks omitted]). "Although absolute exactness is not required, the claim must provide a sufficiently detailed description of the particulars of the claim . . . [and] defendant is not required to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotations and citations omitted]). A proposed claim that does not satisfy the substantive pleading requirements set forth in Court of Claims Act § 11 (b) is legally defective and lacks the appearance of merit (see White v State of New York, UID No. 2015-038-501 [Ct Cl, DeBow, J., Jan. 2, 2015]; see also Gega, supra, UID No. 2018-038-600]).
Here, the proposed claim fails to allege the place where the claim arose, as required by Court of Claims Act § 11 (b). Although the claim necessarily arose in a State correctional facility, and the proposed claim alleges that the April 22, 2019 search occurred in a corridor while claimant was on his way to "evening recreation" (Proposed Claim, ¶ 11), and that the March 12, 2020 search occurred while claimant was on his way to "Rastafarian religious services," the proposed claim fails to identify the State correctional facility or facilities at which these searches allegedly occurred. Because the proposed claim patently fails to identify the place where the incidents occurred, it does not comply with the substantive pleading requirements set forth in Court of Claims Act § 11 (b), and thus lacks merit.
Moreover, even assuming that the proposed claim complied with Court of Claims Act § 11, and to the extent it asserts a cause of action sounding in violation of claimant's religion during the alleged searches when the dog was permitted to touch and damage claimant's dreadlocks, the Court lacks jurisdiction over that claim. The Court of Appeals has declared that although prison inmates "must endure substantial limitations on many rights and privileges [they] previously enjoyed, . . . it is clear that . . . prisoner[s] maintain the right to free exercise of religion under the first amendment of the Federal Constitution" (Matter of Rivera v Smith, 63 NY2d 501, 510 ). The "free exercise right" guaranteed under the New York State Constitution (see NY Const, art I, § 3) "has expressly been extended to those incarcerated in New York correctional facilities by [Correction Law § 610]" (id.). Pursuant to Correction Law § 610, inmates alleging religious discrimination "may institute proceedings in the supreme court of the district where such institution is situated, which is hereby authorized and empowered to enforce the provisions of this section" (Correction Law § 610  [emphasis added]). Because the claim sounding in violation of claimant's religious rights must be brought not in the Court of Claims, but in New York State Supreme Court, this Court lacks jurisdiction over that claim.
As to the last factor, claimant argues that "[n]o other remedy is available to [him], by operation of [Correction Law § 24]" (E.S. Affidavit, ¶ 24). Defendant has not addressed this factor in its submission in opposition to this motion. However, as discussed above, claimant may bring a proceeding in New York State Supreme Court pursuant to Correction Law § 610 in order to vindicate his claim for violation of his religious rights, or an action against defendant's employees for violations of his constitutional rights, and to the extent he alleges a sexual assault by defendant's employees, he may bring an action against the individual officer or officers in Supreme Court (see e.g. Waxter v State of New York, 33 AD3d 1180, 1180 [3d Dept 2006] ["an adequate remedy for a claim of sexual assault is . . . a timely-interposed common-law tort action for assault and battery against the correction officer in his individual capacity"]). This factor thus weighs against granting the late claim application.
In sum, claimant's motion for late claim relief must be denied as untimely with respect to the assault and battery allegations related to the March 6, 2019 search. Having considered and weighed all of the factors set forth in Court of Claims Act § 10 (6) with regard to the remaining allegations, the Court finds that although three of the six statutory factors weigh in support of granting claimant's late claim application, the remaining three factors, including the crucial factor of the appearance of merit, weigh against granting the application.
Accordingly, it is
ORDERED, that claimant's motion number M-95655 is DENIED.
November 5, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Notice of Motion to File a Late Claim, dated March 24, 2020;
2. Affidavit of E.S. in Support of Claimant's Motion to File a Late Claim, sworn to March 24, 2020, with Exhibits A-Q;
3. Proposed Claim, undated;
4. Affirmation of Aaron J. Marcus, AAG, in Opposition to Motion to File a Late Claim, dated September 9, 2020, with Exhibits A & B;
5. Correspondence of Aaron J. Marcus, AAG, dated September 10, 2020, with attachments.
1. The caption has been amended pursuant to Civil Rights Law § 50-b to grant claimant anonymity inasmuch as the claim alleges that claimant is the victim of a sexual offense, as defined in article 130 of the Penal Law.
2. The instant motion was also filed more than one year after the alleged assault that occurred in connection with the April 22, 2019 search. However, on March 20, 2020, Governor Cuomo issued Executive Order 202.8, which, as relevant here, directed that "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to [certain state laws], any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020" (Executive Order No. 202.8, dated Mar. 20, 2020 [9 NYCRR 8.202.8]). That directive has been extended through successive Executive Orders, including most recently Executive Order No. 202.67, which extends the directive for a final time through November 3, 2020 (see Executive Order No. 202.67, dated Oct. 4, 2020 [9 NYCRR 8.202.67]). Pursuant to those Executive Orders, claimant's time to file and serve the instant motion was tolled, effective March 20, 2020, and will begin to run again after the toll expires on November 4, 2020. Accordingly, claimant's late claim application with respect to the April 22, 2019 incident will not be dismissed as untimely. However, because claimant's time to file and serve the instant motion with respect to the March 6, 2019 incident expired prior to the issuance of Executive Order No. 202.8, the motion insofar as it asserts an assault cause of action related to the search on that date must be denied as untimely.
3. Defendant also concedes these three factors with respect to the March 6, 2019 incident inasmuch as claimant filed a grievance in connection with that incident (see Marcus Affidavit, ¶¶ 11, Exhibit A). However, as discussed above, this late claim motion is untimely with respect to the March 6, 2019 assault and battery allegations.
4. The proposed claim submitted with this late claim application is unverified. In the absence of an affidavit addressing the appearance of merit of the proposed claim, the unverified proposed claim lacks probative value and is insufficient to support the late claim motion (see Alexander v State of New York, UID No. 2015-015-237 [Ct Cl, Collins, J., June 8, 2017]; Jenkins v State of New York, UID No. 2003-030-910 [Ct Cl, Scuccimarra, J., Dec. 30, 2003]; cf. Ward v State of New York, UID No. 2018-038-594 [Ct Cl, DeBow, J., Nov. 27, 2018] [proposed claim need not be verified where sworn affidavit by claimant addresses appearance of merit]).