Motion for permission to file a late claim alleging various state constitutional torts denied.
Movant Jay Bradshaw, an inmate in custody of the Department of Corrections and Community Supervision (DOCCS), seeks permission to serve and file a late claim pursuant to Court of Claims Act § 10 (6) for "violation of [his] right to be free from unreasonable searches, to access to court, to free expression and association, and to counsel under the New York State Constitution" (Movant's Aff in Supp ¶ 6).(1) In particular, Movant alleges that he "was unreasonably strip search [sic], denied legal and personal calls, and his legal mail was interfered with" (id.; see also id. Ex 1 [Proposed Claim] ¶ 2). Defendant's alleged violations of Movant's constitutional rights began on or about May 24, 2019 and continued through October 3, 2019. Defendant opposes the motion.(2)
Court of Claims Act § 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act § 10 , [3-a], [3-b]).
The Court has discretion to permit the filing of a late claim pursuant to Court of Claims §10 (6) provided that the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed claim alleges a violation of Movant's rights under the New York State Constitution and carries a three-year statute of limitations under CPLR 214 (5) (see Brown v State of New York, 250 AD2d 314, 318 [3d Dept 1998]; Hassan v State of New York, UID No. 2019-015-194 [Ct Cl, Collins, J. Oct. 21, 2019]). Because it is undisputed that the proposed claim accrued no earlier than May 24, 2019, the proposed claim is timely.
Upon satisfaction that the proposed claim is timely, the Court will consider six statutory factors set forth in Court of Claims Act § 10 (6) as well as other relevant factors in determining whether to grant the late claim (see Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Although the Movant need not satisfy every statutory factor enumerated in Court of Claims Act § 10 (6) (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ), the ultimate the burden rests with the Movants to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797, 804 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movant contends that the late filing of his claim is excusable because he attempted to serve his Claim upon the Attorney General on August 14, 2019, but lacked sufficient funds in his inmate account to serve the Attorney General by certified mail, returned receipt requested (see Movant's Aff in Supp ¶ 3). Movant fails to present any facts substantiate this assertion. In opposition, Defendant submits a certified copy of Movant's inmate account statement which establishes that Claimant had sufficient funds to mail a claim or notice of intention to file a claim by certified mail, return receipt requested during the 90-day accrual period (see Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General, Ex A). In particular, Movant's inmate account statement shows that he had $358.58 on August 14, 2019, the date he allegedly attempted to serve his Claim upon the Attorney General by certified mail, return receipt requested (see id. at 10). Because Movant's inmate account statement contradicts his self-serving statement regarding the sufficiency of his funds to serve the Attorney General within 90 days of accrual, the Court concludes Movant fails to proffer a reasonable excuse for the delay in filing his claim (see Stapleton v State of New York, UID No. 2019-028-524 [Ct Cl, Sise, P.J., May 16, 2019]; Simpson v State of New York, UID No. 2008-030-558 [Ct Cl, Scuccimarra, J., Sept. 15, 2008]).
Additionally, to the extent Movant claims that his delay in filing the claim was excusable because he was "not aware of the short filing period required by the Court of Claims Act" and is "confined in Special Housing Unit" (Reply to Affirmation in Opposition to Motion for Permission to File Late Claim ¶ 4), it is well settled that a movant's ignorance of the law and confinement in a correctional facility are not compelling excuses for the late filing of a claim (see Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 ). Nevertheless, "the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief" (Bay Terrace Coop. Section IV, 55 NY2d at 981).
The next three factors to be addressed--whether Defendant had notice of the essential facts constituting the Claim, whether Defendant had an opportunity to investigate the circumstances underlying the Claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant--are interrelated and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Movant argues that Defendant had notice of the facts constituting his proposed claim by reason of the fact that he filed grievances with DOCCS which were investigated (see Movant's Aff in Supp ¶ 5). Moreover, Movant contends that Defendant will not be prejudiced by permitting the claim to proceed because it "investigated the incidents through its employees who are grievance staff and supervisory officials, and the officers involved can be contacted and are still available to the attorney general" (id. ¶ 7). Based on Movant's representations, the Court concludes that these three factors weigh in favor of granting late claim relief (see Bonie v State of New York, UID No. 2020-038-540 [Ct Cl, DeBow, J., July 8, 2020]).
The fifth factor to be considered is whether Movant has another remedy available. The proposed claim alleges that specific correction officers violated his constitutional rights while he was incarcerated at Mid-State Correctional Facility. Consequently, Movant could commence a civil rights action against these individual correction officers pursuant to 42 USC § 1983 in federal court or state supreme court (see e.g. M.K. v State of New York, UID No. 2016-044-532 [Ct Cl, Schaewe, J., May 10, 2016]). Consequently, this factor weighs in Defendant's favor.
The last and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for "it would be futile to permit a defective claim to be filed even if the other factors in Court of Claims Act § 10 (6) supported the granting of the [movant's] motion" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], affd sub nom. Donald v State of New York, 17 NY3d 389  [internal quotation marks and citation omitted]). It is Movant's burden to show that there is reasonable cause to believe that a valid cause of action exists and that the claim is not patently groundless, frivolous or legally defective and (see Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). Although this standard places a heavier burden upon a party who has filed late, it does not require a movant to definitively establish the merit of the claim or to overcome all legal objections before the Court will permit the filing of a late claim (see Matter of Santana, 92 Misc 2d at 11-12).
Here, Movant purports to allege a violation of his "right be free from unreasonable searches, to access to court, to free expression and association, and to counsel under the New York Constitution" (Movant's Aff in Supp ¶ 6). In Brown v State of New York (89 NY2d 172 ), the Court of Appeals "recognized that, when certain requirements are met, a violation of the NY Constitution may give rise to a private cause of action" (Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; see Wagoner v State of New York, UID No. 2008-029-014 [Ct Cl, Mignano, J., Apr. 2, 2008]). However, the Court later clarified in Martinez v City of Schenectady (97 NY2d 78, 83 ), that Brown establishes a "narrow remedy," applicable in cases where no other remedy is feasible to provide citizens with "an avenue of redress" when their private interests have been harmed by constitutional violations (see also Waxter, 33 AD3d at 1181). Thus, "where an adequate remedy could be provided, 'a constitutional tort claim . . . is [not] necessary to effectuate the purposes of the State constitutional protections . . . [invoked] nor appropriate to ensure full realization of [claimants'] rights'" (Bullard v State of New York, 307 AD2d 676, 679 [3d Dept 2003], quoting Martinez, 97 NY2d at 83). Stated differently, "no such claim will lie where the claimant has an adequate remedy in an alternate forum" (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1150 [3d Dept 2009]).
As an initial matter, Movant's "'cause of action for denial of access to the courts is based upon a violation of the Federal Constitution and must be pursued pursuant to 42 USC § 1983'" (Lopez v State of New York, UID No. 2017-044-012 [Ct Cl, Schaewe, J., Sept. 14, 2017], quoting Gagne v State of New York, UID No. 2001-013-029 [Ct Cl, Patti, J., Nov. 30, 2001]; see also Matter of Colton v Riccobono, 67 NY2d 571, 576  ["our State Constitution does not create a per se right of access to civil courts"]). Consequently, Movant's claim that he was denied access to the courts is not a cognizable cause of action over which the Court of Claims has jurisdiction (see Battee v State of New York, UID No. 2019-054-002 [Ct Cl, Rivera, J., Jan. 10, 2019]).
Moreover, recognition of the State constitutional cause of action is neither necessary nor appropriate to ensure the full realization of Movant's rights as it relates to his other claimed constitutional violations. Movant's contention that he was subjected to an unreasonable strip search could be addressed through an inmate grievance and judicial review pursuant to CPLR article 78 (see Fleming v State of New York, UID No. 2019-015-140 [Ct Cl, Collins, J., May 3, 2019]). Indeed, Defendant submits proof establishing that Movant availed himself of such alternative remedy and filed a grievance on June 18, 2019 alleging he was improperly strip searched (see Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General, Ex C).
Movant's claim that his State constitutional right to free expression and association were violated could be addressed in a civil rights action pursuant to 42 USC § 1983 (see Gunn v State of New York, UID No. 2020-038-543 [Ct Cl, DeBow, J., July 9, 2020]; Rucano v State of New York, UID No. 2016-041-061 [Ct Cl, Milano, J., Aug. 10, 2016]) or a CPLR article 78 proceeding (see Jones v State of New York, UID No. 2001-018-070 [Ct Cl, Fitzpatrick, J., Mar. 2, 2001]).
Lastly, Movant alleges that his right to counsel was violated. However, such claim relates solely to "pending civil litigation" (Proposed Claim ¶ 5). It is well settled that there is no constitutional right to counsel in civil litigation (see Matter of Smiley, 36 NY2d 433, 438 ). To the extent Movant's claimed violation of his right to counsel is premised upon the denial of telephone calls with his attorney, he could have raised such claims in a CPLR article 78 proceeding or declaratory judgment action in Supreme Court (see Sze v State of New York, UID No. 2014-039-411 [Ct Cl, Ferreira, J., May 30, 2014] [dismissing state constitutional cause of action alleging that DOCCS eavesdropped on the Claimant's privileged phone calls with his attorney in violation of his right to counsel under the New York State Constitution because the Claimant could have raised his state constitutional claim in the context of a CPLR article 78 proceeding or declaratory judgment action in Supreme Court]). Moreover, to the extent Movant's avers that his right to counsel was violated because correction officers tampered with and withheld legal mail, 7 NYCRR § 720.4 (g) (2) provides an administrative remedy that defeats the viability of a State constitutional tort (see McRae v State of New York, UID No. 2017-038-531 [Ct Cl, DeBow, J., Mar. 30, 2017]).
In sum, recognition of the State constitutional cause of action is neither necessary nor appropriate in light of the various, adequate alternative remedies available to Movant to vindicate his rights. Accordingly, Movant has failed to establish the merit of his proposed claim alleging a violation of his state constitutional rights.
Therefore, upon balancing all of the factors in Court of Claims Act section 10 (6), it is hereby:
ORDERED Motion No. M-95472 is denied in its entirety.
October 8, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court has considered the following in deciding this motion:
(1) Notice of Motion for Permission to File Late Claim, dated February 4, 2020.
(2) Movant's Affidavit in Support of Motion to a File Late Claim, sworn to on February 4, 2020, with attachments.
(3) Court's Letter, dated August 7, 2020.
(4) Movant's Letter, dated August 17, 2020.
(5) Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General, dated September 24, 2020, with attachments.
(6) Movant's Reply to Affirmation to Motion for Permission to File Late Claim, dated September 29, 2020.
1. By Executive Order 202 et seq., Governor Andrew M. Cuomo extended the tolling of "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."By letter dated August 7, 2020, this Court requested the parties' consent to a new return date of October 7, 2020 in an effort to move motions forward. Both parties consented to the new return date.
2. Movant filed a separate motion alleging different violations of his rights under the New York State Constitution (see Motion No. M-95414). Defendant submitted one set of opposition papers addressed to both of Movant's motions (see Affirmation of Christopher J. Kalil, Esq., Assistant Attorney General ¶¶ 2, 5).
|Claimant short name:||BRADSHAW|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Jay Bradshaw, Pro Se|
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Christopher J. Kalil, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 8, 2020|
|See also (multicaptioned case)|