Motion for late claim relief denied. Claimant failed to submit an affidavit addressing the factors laid out in Court of Claims Act § 10 (6), and the proposed claim was patently non-compliant with the substantive pleading requirements of Court of Claims Act § 11 (b) and thus jurisdictionally defective.
|Claimant(s):||ANTONIO BENNETT a/k/a ANTHONY WILLIAMS|
|Claimant short name:||BENNETT|
|Footnote (claimant name) :|
|Defendant(s):||N.Y.S. DIVISION OF PAROLE|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||ANTONIO BENNETT a/k/a ANTHONY WILLIAMS, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Glenn C. King, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 4, 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 various causes of action that arose at various State correctional facilities over the course of twelve years. Defendant opposes the motion.
The proposed claim alleges causes of action sounding in wrongful confinement, breach of contract, negligence, and "appropriation(s)" that accrued at Downstate Correctional Facility (CF), Woodburne CF, Attica CF, Clinton CF, and Elmira CF between April 6, 2005 and November 6, 2017 (see Proposed Claim, ¶¶ 2-4). The proposed claim contains no further factual allegations elaborating on those causes of action, nor does it link any of the causes of action to specific correctional facilities or dates, and it seeks $40 million in damages.
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. 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 late claim motion, claimant has failed to submit an affidavit addressing any of the factors laid out in Court of Claims Act § 10 (6). Rather, claimant has submitted along with his notice of motion a 19-page document referencing some 88 exhibits, none of which appear to be appended to claimant's moving papers, and containing no legal argument (see Notice of Motion, unenumerated attachments [Untitled Document]). Claimant's submission appears to consist largely of definitions of various terms, with occasional references to several of the statutory factors but no substantive argument addressing them.(1) Claimant's submission is also accompanied by copies of the regulations governing final parole revocation hearings, a certificate of disposition with regard to claimant's plea of guilty to the charge of criminal possession of stolen property in the fourth degree, print-outs of claimant's inmate information from the Department of Corrections and Community Supervision website, and a copy of 12 NYCRR 253.2, which governs joinder of parties in proceedings before the Labor Relations Board (see id., unenumerated attachments). However, in the absence of any substantive allegations in the proposed complaint, a sworn affidavit, or any legal argument in support of the instant motion for late claim relief, the significance of those exhibits is unclear. Inasmuch as claimant has failed to submit a sworn affidavit addressing any of the statutory factors set forth in Court of Claims Act § 10 (6), and the submissions accompanying claimant's motion do not elucidate the bare allegations contained in the proposed claim, claimant has failed to meet his burden on this late claim relief, and the application must be denied (see Hall v State of New York, UID No. 2020-015-071 [Ct Cl, Collins, J., Aug. 31, 2020] [late claim relief denied where claimant failed to address statutory factors and unsworn supporting facts failed to support allegations in proposed claim]; Pankova-Visser v State University of New York University at Albany, UID No. 2019-038-614 [Ct Cl, DeBow, J., Dec. 18, 2019] [denying motion for late claim relief where claimant failed to address any of the statutory factors in Court of Claim Act § 10 (6)]; Phillips v New York State Gaming Commission, UID No. 2016-038-545 [Ct Cl, DeBow, J., July 25, 2016] [denying late claim motion where claimant failed to address any of the statutory factors]).
Moreover, even if claimant had addressed the statutory factors in Court of Claims Act § 10 (6), the Court would have denied his application because the proposed claim is bereft of any factual allegations, rendering it non-compliant with the jurisdictional pleading requirements in Court of Claims Act § 11 (b) (see Lepkowski v State of New York, 1 NY3d 201, 209 ; Kolnacki v State of New York, 8 NY3d 277, 281 ), rearg denied 8 NY3d 994 ). Inasmuch as the proposed claim is jurisdictionally defective, it patently lacks merit within the meaning of Court of Claims Act § 10 (6), which would weigh decisively against the granting of this late claim application (see D.G. v State of New York, UID No. 2020-038-505 [Ct Cl, DeBow, J., Jan. 9, 2020]).
Accordingly, it is
ORDERED, that claimant's motion number M-95972 is DENIED.
December 4, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Notice of Motion, dated September 4, 2020, with unenumerated exhibits;
2. Proposed Claim, sworn to August 31, 2020;
3. Affirmation of Glenn C. King, AAG, in Opposition, dated November 4, 2020, with Exhibits A-D;
4. Reply of Antonio Bennett a/k/a Anthony Williams, dated November 20, 2020.
1. Claimant has also belatedly submitted what appear to be two separate replies to defendant's opposition to the late claim motion. However, claimant failed to reserve his right to submit a reply in his notice of motion, (see CPLR 2214 [b]), and even if he were entitled to submit a reply, his submissions were nevertheless untimely, having been received by the Court on November 25, 2020, one week after the return date of this motion, and on November 30, 2020, almost two weeks after the return date of this motion. Nevertheless, in the interest of justice, the Court has considered claimant's replies, and notes that, like his submissions in support of the late claim motion, they appear to consist solely of definitions of various terms and refer vaguely to the exhibits appended to his late claim application (see Bennett Reply, dated Nov. 20, 2020; Undated Bennett Reply, filed Nov. 30, 2020).