Claimant's late claim motion, pro se.
|Claimant short name:||WYSE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Agblevor Wyse, Pro Se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||May 12, 2020|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion and Claimant's Affidavit with attachments.
Claimant, Agblevor Wyse, has brought this motion seeking an order pursuant to Court of Claims Act (CCA)§ 10 (6) seeking an order granting permission to file a late claim. Defendant, the State of New York, has not opposed the motion.
Claimant alleges that, on August 19, 2019 at approximately 12:00 p.m., he arrived at Downstate Correctional Facility when his First Amendment rights were violated as he was forced to choose between cutting his hair, which is against his religious beliefs, and disciplinary action. In his claim, he sets forth that he told the correction officers that he had a Court Order exempting him from New York State Correctional Services haircut regulations and grooming standards on the basis of his Rastafarian beliefs. He alleges that he was ignored and was forced to cut his hair.
It is well settled that "[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 ). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10 (6) (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.
Claimant does not offer any legally acceptable excuse for the delay in filing the claim. However, lack of an acceptable excuse, alone, is not an absolute bar to a late claim application (Matter of Carvalho v State of New York, 176 AD2d 317 [2d Dept 1991]). A reasonable excuse for untimely service is only one of several factors taken into consideration by the Court when considering whether to allow late filing of a claim and is not by itself determinative.
The next three factors, notice, an opportunity to investigate and prejudice are interrelated and as such will be considered together. Claimant has not set forth any arguments with respect to these factors. Thus the Court finds that, these factors are found to be in defendant's favor.
The most significant issue to be considered is that of merit. To permit the filing of a legally deficient claim would be an exercise in futility (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
In order for a claim to "appear to be meritorious": (1) it must not be patently groundless, frivolous, or legally defective, and (2) the court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists...[T]he court need only determine whether to allow the filing of the claim, leaving the actual merits of the case to be decided in due course. While this standard clearly places a heavier burden on a claimant who has filed late than upon one whose claim is timely, it does not, and should not, require him to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]).
Claimant's claim is for a violation of the United States Constitution which is outside the jurisdiction of this court (see Court of Claims § 9).
Additionally, the Court of Claims should not imply a State Constitutional remedy when an alternative remedy is available to claimant (Peterec v State of New York, 124 AD3d 858 [2d Dept 2015]; Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]; Martinez v City of Schenectady, 97 NY2d 78 ; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]).
Corrections Law § 610 provides that claims based on freedom of worship may be asserted "in the supreme court of the district where [the correctional] institution is situated," which is the specific court the Legislature "authorized and empowered to enforce the provisions of this section" (Oppenheimer v State of New York, 152 AD3d 1006 [3d Dept 2017]). By its terms, the statute creates a cause of action that may only be asserted in Supreme Court and not the Court of Claims (id.). Since claimant could assert his claim as a federal constitutional claim in federal court or in State Supreme Court under Correction Law § 610, a state constitutional remedy is not warranted (Alsaifullah v State of New York, 166 AD3d 1426 [3d Dept 2018]; Oppenheimer v State of New York, 152 AD3d 1006 [3d Dept 2017]).
Based upon the foregoing and having considered the statutory factors enumerated in Court of Claims Act §10 (6), the Court finds that claimant's motion is denied.
May 12, 2020
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims