Motion for late claim relief denied as premature. Claimant's time to file and serve the claim has not yet expired.
|Claimant(s):||RONALD PLAZA, #16-A-3412|
|Claimant short name:||PLAZA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||RONALD PLAZA, Pro se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||November 9, 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 assaulted by multiple correction officers at Green Haven Correctional Facility (CF) on May 8, 2019. Defendant has not responded to the motion.
The proposed claim alleges that on the evening of May 8, 2019, Lieutenant Ronald G. Wood ordered claimant out of his cell and, after verifying claimant's identity, subjected him to a pat frisk, aggressively walked him to "the platform of 2 and 5 companies" and questioned him about a previous incident at Five Points CF (Proposed Claim, ¶ 7). The proposed claim alleges that Lieutenant Wood stated that he had been ordered to place claimant in protective custody and brought claimant "downstairs," where he authored a document that he and claimant then signed in which claimant stated that he had no problems at Green Haven CF and did not wish to be placed in protective custody (id.). The proposed claim alleges that Lieutenant Wood then returned claimant to his cell, where two other inmates immediately warned him that Lieutenant Wood had a reputation "for having inmates beaten-up" (id. at ¶ 9).
The proposed claim alleges that claimant then went out to the recreation yard to make a telephone call, and that during the call, he witnessed a physical altercation between correction officers and another inmate (see id. at ¶¶ 10-11). The proposed claim alleges that the altercation escalated, and that claimant was one of only a few inmates who heeded correction officers' direct orders to place their hands on the wall (see id. at ¶ 12). The proposed claim further alleges that claimant complied with Sergeant Mrzyglod's order to get down on the ground, and that Sergeant Blot thereafter walked through the area where claimant and several other inmates were lying and stated, " 'These are the inmates that were throwing objects at my officers, cuff them up,' " over the inmates' objections that they did not throw anything (id. at ¶ 13). The proposed claim alleges that Lieutenant Wood then pointed out claimant to Sergeant Mrzyglod and directed Sergeant Mrzyglod to " 'break him up,' " that Sergeant Mrzyglod ordered Correction Officer (CO) Hernandez to remove claimant's handcuffs so that he could " 'show the other inmates how he beats up [claimant],' " and that Sergeant Mrzyglod then placed claimant in an arm lock and pulled his shirt from behind, causing claimant to have difficulty breathing (id. at ¶¶ 14-16). The proposed claim alleges that claimant stumbled as he was being "pushed" and "rushed towards the corridors" (id. at ¶ 16), and that while he was on the ground, he was physically assaulted by Sergeant Mrzyglod, COs Womosco, Colombos, Hernandez, Rio, Egan, and several unidentified COs, causing him to soil himself and to lose consciousness (see id. at ¶¶ 16-17). The proposed claim alleges that when the assault concluded, claimant was forced to stand and face the wall, and he saw Lieutenant Wood leave the area (see id. at ¶ 19).
The proposed claim alleges that claimant was then escorted to the Special Housing Unit (SHU), where he was strip searched and issued new clothing, and that facility medical staff ignored his complaints of severe pain and did not examine his injuries but sent him to the mental health department after he threatened suicide if he was placed in solitary confinement without receiving adequate medical care (see id. at ¶¶ 19-21). The proposed claim alleges that claimant was placed on suicide watch, but that CO Womosco continued to "harass" claimant, and that claimant then suffered a panic attack and was transported to an outside hospital, where it was discovered that he had sustained "several injuries with broken/displaced bones" (id. at ¶ 22).
On May 9, 2019, claimant filed an institutional grievance with respect to the incident on May 8, 2019 (see id., Exhibit B), and on May 15, 2019, he submitted inmate claim forms seeking compensation for the loss and destruction of his personal property in connection with his transfer to the SHU following the alleged assault on May 8, 2019 (see id. at ¶ 26, Exhibit D). The property claim was denied on November 5, 2019 (see id., Exhibit D).
The proposed claim alleges that on May 11, 2019, claimant was served with a false inmate misbehavior report (IMR) authored by Sergeant Mrzyglod that charged him with violating disciplinary rules 104.10 (rioting), 104.12 (demonstration), 106.10 (direct order), 104.11 (violent conduct), 104.13 (creating a disturbance), and 107.10 (interference) on May 8, 2019, and that he was found guilty of creating a disturbance and interference with an employee at the ensuing Tier III disciplinary hearing and received 30 days of keeplock confinement (see Proposed Claim, ¶¶ 23-25, Exhibits A & C). The proposed claim further alleges that claimant lodged a complaint with the United States Attorney General's Office and administratively appealed the disciplinary determination, that all of the charges stemming from the IMR were thereafter reversed and expunged from claimant's institutional record, and that claimant was transferred to Shawangunk CF on or around June 27, 2019 following another incident with CO Womosco (see Proposed Claim, ¶¶ 27-30, Exhibits E-I). The proposed claim alleges that claimant sustained physical and emotional injuries as a result of the assault by defendant's employees on May 8, 2019, and seeks $6 million in damages (see id. at ¶¶ 31-35 and "Wherefore" clause). The proposed claim asserts a single cause of action alleging a violation of claimant's right to be free from cruel and unusual punishment under the New York State Constitution (see id. at ¶¶ 36-37). The proposed claim alleges that a "Notice of Intention to File this Claim" was served on the Office of the Attorney General on May 16, 2019 (id., ¶ 38).
Claimant's motion will be denied as unnecessary, for the reasons that follow. Court of Claims Act §§ 10 (3) and 10 (3-b) provide that a claim against the State sounding in either constitutional tort or intentional tort must be filed with the Clerk of the Court of Claims and served on the Attorney General within 90 days of accrual (see Lyles v State of New York, 3 NY3d 396, 400  [constitutional tort subject to Court of Claims Act ¶ 10 (3) time requirement]), unless a claimant serves a notice of intention to file a claim served on the Attorney General within 90 days of accrual, which extends the time within which to serve and file a claim to two years for a claim sounding in constitutional tort and one year for a claim sounding in intentional tort (see Court of Claims Act §§ 10 , 10 [3-b]). The instant claim alleges an accrual date of May 8, 2019 for the intentional tort (i.e. assault and battery) and constitutional tort claims asserted therein, and that claimant timely served a notice of intention on May 16, 2019, which extended his time to file and serve his assault and battery claim to May 8, 2020, and his time to file and serve the constitutional tort claim to May 8, 2021.(1)
As claimant correctly notes in his supplemental submission, on March 20, 2020, Governor Cuomo issued Executive Order No. 202.8, which, among other things, 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] [emphasis added]). That directive has been extended through successive Executive Orders, including most recently Executive Order No. 202.67, which extends the directive a final time through "November 3, 2020, and after such date any such time limit will no longer be tolled" (Executive Order No. 202.67, dated Oct. 4, 2020 [9 NYCRR 8.202.67] [emphasis added]; see also Executive Order No. 202.72, dated Nov. 3, 2020 [9 NYCRR 8.202.72] ["the suspension for civil cases in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any specific time limit for the commencement, filing, or service of any legal action, . . . as prescribed by the procedural laws of the state, including but not limited to . . . the court of claims act, . . . is hereby no longer in effect as of November 4, 2020]).
Ordinarily, and inasmuch as claimant served a timely notice of intention to file a claim, claimant's time to have filed and served his assault and battery claim would have expired on May 8, 2020, but that deadline was tolled by operation of the Governor's Executive Order and its extensions. Thus, inasmuch as the original May 8, 2020 deadline fell 49 days after the Governor's Executive Order, claimant's time to file and serve his assault and battery tort claim was tolled after 49 days, and his time to file and serve the intentional tort claim has not yet expired (cf. Scheja v Sosa, 4 AD3d 410 [2d Dept 2004] [Executive Order issued following world Trade Center attacks extended the limitations period to the date of the Executive Order's expiration and did not operate as a toll]; Ma Ja Song v New York City Tr. Auth., 43 Misc3d 1201[A], 2014 NY Slip Op 50442[U], *3 [Sup Ct, New York County 2014] [Executive Order following Superstorm Sandy suspended limitations periods to the expiration date provided in the Executive Order and did not operate as a toll]). Accordingly, claimant's time to file and serve his assault and battery claim arising from the alleged May 8, 2019 assault has not yet expired in light of the toll imposed by the Executive Orders, and this motion is unnecessary. Moreover, inasmuch as claimant timely served a notice of intention, which likewise extended the time to file and serve his constitutional tort claim to May 8, 2021, this motion is premature and unnecessary.
Accordingly, it is
ORDERED, that claimant's motion number M-95784 is DENIED.
November 9, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Motion for Permission To File A Late Claim, dated August 4, 2020;
2. Proposed Claim, sworn to August 4, 2020, with Exhibits A-I;
3. Affidavit of Service of Ronald Plaza, sworn to August 4, 2020;
4. Plaza Correspondence, dated September 16, 2020.
1. In an unsworn supplemental submission, claimant states that the notice of intention to file a claim was served on the Attorney General on May 24, 2019 by certified mail, return receipt requested (see Plaza Correspondence, dated Sept. 16, 2020). Regardless of whether the Attorney General was served with the notice of intention on May 16, 2019 or May 24, 2019, it was timely served and thus extended claimant's time to file and serve these claims.