A pro se inmate's motion for permission to late file a claim for sexual assault is denied without prejudice. Movant failed to include the proposed claim or address the factors enumerated in Court of Claims Act 10 (6).
|Claimant short name:||R.S.|
|Footnote (claimant name) :||The Court has amended the caption sua sponte in accordance with 22 NYCRR §206.5(e) as the motion alleges that movant was a victim of a sexual assault.|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||R.S., Pro Se|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Tamara B. Christie, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 2, 2021|
|See also (multicaptioned case)|
Movant R.S., an inmate proceeding pro se, moves the Court for permission to late file and serve a claim pursuant to Court of Claims Act § 10 (6) based on an alleged sexual assault. Defendant opposes the motion.
A motion for permission to late file and serve a claim must be brought "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act § 10 ). Actions to recover for assault are governed by the one-year intentional tort statute of limitations in CPLR 215 (3). Movant references two dates in his supporting affidavit: November 3, 2020 and January 19, 2019. Unfortunately, movant's handwriting is difficult to decipher and the Court cannot determine if he is seeking redress for an assault on either date, both dates or neither date. Movant's motion, however, was filed on December 16, 2020, within one year of either a November 3, 2020 or a January 19, 2019 assault. Accordingly, movant's motion appears to be timely.
Section 10 (6) of the Court of Claims Act requires that "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application." The failure to include the proposed claim is a basis, in and of itself, for denial of the motion (Davis v State of New York, 28 AD2d 609 [3d Dept 1967]). While movant generally refers to "my proposed claim" in paragraph 6 of his supporting affidavit, no proposed claim is attached to his motion papers. Moreover, not all of the information that must be included in a proposed claim is mentioned in movant's affidavit. Pursuant to Court of Claims Act § 11 (b), "[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries . . . ." The Court cannot determine from movant's affidavit when the alleged assault occurred, where it occurred, the circumstances surrounding any alleged assault, the nature of defendant's liability or the items of damages.
Court of Claims Act § 10 (6) grants the Court discretion to permit the late filing of a claim upon consideration of 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 [movant] has any other available remedy."
The factors enumerated in the statute are not exhaustive and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ).
In his supporting affidavit, movant alleges that he failed to timely file and serve a claim due to his lack of knowledge and incarceration. Movant's excuses are insufficient. Neither ignorance of the law nor incarceration constitute acceptable excuses (Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]).
The most important factor to consider is merit as it would be futile to permit the filing of a meritless claim (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). It is movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). Here, movant alleges that his claim is meritorious and that reports and memoranda were written with respect to the incident, although none were attached to the motion. Without a proposed claim that complies with Court of Claims Act § 11 (b), movant's affidavit is insufficient to show that there is reasonable cause to believe that a viable cause of action exists.
Based on the foregoing, movant's motion no. M-96275 for permission to late file a claim is denied without prejudice. Movant may file a subsequent motion for permission to late file a claim that includes a proposed claim that is in compliance with Court of Claims Act § 11 (b) and is accompanied by an affidavit that addresses all of the factors set forth in Court of Claims Act § 10 (6). Any subsequent motion must be filed prior to the expiration of the applicable statute of limitations.
August 2, 2021
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and supporting affidavit of R. S. sworn to December 10, 2020;
2. Opposing affirmation of Assistant Attorney General Tamara B. Christie dated January 5, 2021;
3. Correspondence from R.S. dated March 9, 2021, with attachments.