The Court denied pro se inmate's application for permission to file a late claim.
|Claimant short name:||GOVAN|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||DEBRA A. MARTIN|
|Claimant's attorney:||KWAUHURU GOVAN, PRO SE|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: DOUGLAS R. KEMP, ESQ.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 6, 2021|
|See also (multicaptioned case)|
The following papers were read on movant's application for permission to file a late
1. Notice of Motion with Affidavit of Kwauhuru Govan and attached exhibit consisting of a verified proposed claim(1) , filed September 13, 2021; and
2. Affirmation of Douglas R. Kemp, AAG, dated October 5, 2021.
Pro se movant, an incarcerated individual in a State correctional facility, moves per Court of Claims § 10 (6) for permission to file and serve a late claim. The movant used a form for his proposed claim, generally alleging eight causes of action(2) without any specific details or the dates, times, and locations of the alleged incidents. Movant's affidavit in support of his motion for permission to file a late claim, also on a form, was equally incomplete and failed to provide coherent accounts of the alleged incidents that were the basis for his proposed claim. For example, the affidavit stated the incident occurred on "2/21/21-6/10/21." As to allegations movant's affidavit alleged "Assault, violation of my human Rights" and "The officer stole my property and my outgoing mail." As to the State having notice of the essential facts, movant listed "1) Upstate Correctional Facility Box 2) Alburn Bus Driver to Five Points" and additionally alleged a grievance was filed and available upon request. The State opposed the motion.
Initially, the Court notes that it has no authority to grant permission to file and serve a late claim for missing property. (see Court of Claims Act § 10 (9); see also Roberts v State of New York, 11 AD3d 1000, 1001 [4th Dept 2004].) (see Encarnacion v State of New York, 133 AD3d 1049, 1050 [3d Dept 2015].) Movant should have filed an administrative institutional claim for lost property. Likewise, the Court has no jurisdiction as to movant's allegations of cruel and unusual punishments that sounds in violations of both State and Federal Constitution. (C.C. v State of New York, UID No. 2016-051-011 [Ct Cl, Martin, J., Apr. 26, 2016]; see Martinez v State of New York, UID No. 2021-028-532 [Ct Cl, Sise, P. J., Aug. 12, 2021].) The Court of Claims has no jurisdiction over claims of violations of 42 USC § 1983. (Kidd v State of New York, UID No. 2003-013-030 [Ct Cl, Patti, J., Nov. 19, 2003].) Here, a state constitutional tort claim is unnecessary since movant may bring an action in federal court pursuant to 42 USC § 1983. (Knight v State of New York, UID No. 2021-038-511 [Ct Cl, DeBow, J., Jan. 26, 2021].)
In considering claimant's motion, the Court of Claims Act § 10 (6) sets forth, at minimum, the six factors to be weighed when deciding whether to grant an application to file a late claim:
"[A]mong other 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."
In applying these criteria, it is important to note that no one factor is more important because the presence or absence of any one factor is not controlling. (Cabrera v State of New York, UID No. 2011-039-220 [Ct Cl, Ferreira, J., Mar. 16, 2011].)
The first factor regarding whether the delay in filing the claim was excusable must go against the movant. Movant, relying only upon the form language, alleges that he lacked an understanding of the law and lacked access to it. The Court concurs with the State that it has long been held that ignorance of the law or lack of access to counsel is not a valid excuse for untimely filing a claim because "[t]he filing requirements of the Court of Claims are not so burdensome that a layperson cannot prepare adequate pleadings." (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; see also Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002]; Simpson v State of New York, 96 AD2d 646, 646 [3d Dept 1983]; and Barrett v State of New York, UID No. 2000-001-036 [Ct Cl, Read, J. June 30, 2000].) The three factors regarding whether the State had notice of the essential facts, had an opportunity to investigate, or would be prejudiced by the granting of this motion, are "intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342, 672 NYS2d 650, 655 (Ct Cl 1998)." (Benedit v State of New York, UID No. 2011-016-058 [Ct Cl, Marin, J., Dec. 12, 2011].) As to these three factors, the movant again relied upon the form to generally allege that "New York State had notice of the essential facts of my claim", adding in response to cues that employees were present, that there were videos of the incident, that he filed a grievance (but did not attach it), and that there was an in depth investigation. As to these factors, the State asserts that movant offered no details and that although it may have been aware of the incidents, it was not aware of the movant's intent to file a claim and has been prejudiced by the eight month delay since it could not timely investigate while witnesses' recollections of the incident were fresh.
It is difficult to assess whether the State was on notice of movant's intent to bring a lawsuit given the absence of any documentary evidence or proof of the injuries movant sustained in the assault. (Block v New York State Thruway Auth., 69 AD2d 930, 931 [3d Dept 1979]; see Hassan v State of New York, UID No. 2019-015-194 [Ct Cl, Collins, J., Oct. 21, 2019].) There is a distinction between knowing an incident occurred and the intent of an inmate to commence litigation, and holding Department of Corrections and Community Supervision (DOCCS) civilly liable for it. (Id; Stubbs v State of New York, UID No. 2007-028-585 [Ct Cl, Sise, P. J., Dec. 28, 2007]; cf Wares v State of New York, UID No. 2018-038-506 [Ct Cl, DeBow, J., Jan. 10, 2018].) Missing from movant's application is the sum and substance of the incidents and the alleged wrong doings. The proposed claim is simply a vague list of causes of action. Without basic information, the Court is at a loss to appropriately assess whether the State was on notice that litigation was a likely result of the incident. Accordingly, these factors weigh against movant.
Turning to the alternative remedy factor, the Court notes that the form assertion relied upon by the movant that "[n]o other state remedy is available to me" too narrowly frames and does not fully answer the query. Accordingly, this factor weighs against granting the motion.
It has been held that the appearance of merit factor should be weighed most heavily since it would be futile to permit the filing of a deficient claim. (Clark v State of New York, UID No. 2013-028-507 [Ct Cl, Sise, P. J., Apr. 19, 2013].) This factor is evaluated using the two prong test set forth in Matter of Santana v New York State Thruway Auth., (92 Misc 2D 1 [Ct Cl, 1977]). Movant's proposed claim "must not be patently groundless, frivolous, or legally defective," and his record as a whole, including the proposed claim and any affidavits or exhibits, must give "reasonable cause to believe that a valid cause of action exists" (id. at 11). The burden of demonstrating merit rests with the movant, which he has not sustained for the reasons set forth below. (Frederick v State of New York, 23 Misc 3d 1008, 1012 [Ct Cl, 2009].)
An application for a late claim should be denied if the proposed claim fails to satisfy the pleading requirements of Court of Claims Act § 11(b) because it is a fatal jurisdictional defect. (Curry v State of New York, UID No. 2018-038-507 [Ct Cl, DeBow, J., Jan. 10, 2018] citing Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]; Lepkowski v State of New York, 1 NY3d 201, 209 ; Kolnacki v State of New York, 8 NY3d 277, 281 ; Doe v State of New York, UID No. 2013-048-125 [Ct Cl, Bruening, J., Dec. 19, 2013]; White v State of New York, UID No. 2015-038-501 [Ct Cl, DeBow, J., Jan. 2, 2015]). Court of Claims Act § 11 (b) provides that a "claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and . . . the total sum claimed." Here, movant's proposed claim completely fails to state where and when the incidents occurred, and provides no details of the incidents. Accordingly, the proposed claim fails to satisfy the minimum pleading requirements of Court of Claims Act § 11 (b), which renders it jurisdictionally defective. (Id.)
Moreover, not all use of force by a correctional officer is actionable. Correction Law § 137 (5) authorizes the use of force under certain limited circumstances. Use of force by correctional officers against inmates is also sanctioned by the rules and regulations governing them when certain conditions are present. (see 7 NYCRR 251-1.2 [b] and [d].) "In order to assess what degree of force was necessary at the time of the incident, this Court is to consider the particular circumstances that confronted the correction officer at the time that the force was applied." (Bennett v State of New York, UID No. 2020-053-007 [Ct Cl, Sampson, J., May 12, 2020] citing Bush v State of New York, 57 AD3d 1066 [3d Dept 2008]; Koeiman v City of New York, 36 AD3d 451 [1st Dept 2007], lv denied 8 NY3d 814 .) Here, movant's proposed assault and battery causes of action failed to provide any facts regarding the circumstances surrounding the uses of force to enable this Court to assess whether the uses of force allegedly applied by the correctional officers was lawful.
In light of the above, the statutory factors weigh against the movant and the Court denies his motion (M-97212) for permission to file a late claim, without prejudice.
December 6, 2021
Rochester, New York
DEBRA A. MARTIN
Judge of the Court of Claims
1. The letter from movant to the Clerk of the Court, dated August 21, 2021, was not considered by the Court because it is dated after the date the proposed claim was verified before a notary and the information was not contained within the sworn affidavit.
2. The proposed claim alleged the following causes of action: "Damages to my body/assault, Damage to my personal property, Assaulted with Shuttle Bus, Negligents, Medical Negligents, Ministrial Negligents, Crule and unusual punishment, Violation of State Constitional Rights [sic]."