Movant, an incarcerated individual, alleges that he sustained injuries falling from a top bunk due to the negligence of the State. Movant's motion for leave to file a late claim is granted as the Court finds that the factors of notice, opportunity to investigate, lack of prejudice and no alternative remedy weigh in his favor.
|Claimant short name:||BUGGS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||LINDEL BUGGS, Pro Se|
|Defendant's attorney:||HON LETITIA JAMES
New York State Attorney General
BY: Carlton K. Brownell, III. Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 8, 2021|
|See also (multicaptioned case)|
Movant Lindel Buggs, a former incarcerated individual, seeks leave to file a late claim to recover against the State of New York for the alleged negligence of the Department of Corrections and Community Supervision (DOCCS). Mr. Buggs alleges that he had a medical permit that required him to be in a bottom bunk, which personnel at Collins Correctional Facility declined to honor. Movant alleges that he injured his back at Collins on October 16, 2018 when he fell off the top bunk during his sleep. According to Mr. Buggs, he was required to undergo back surgery on September 30, 2020 due to the injuries he sustained in his fall from the top bunk.
Now before the Court is movant's application for leave to file a late claim. For reasons stated below, the Court will exercise its discretion and grant the motion.
A Court may grant late claim relief so long as the underlying cause of action is not time-barred by the applicable CPLR statute of limitations (Court of Claims Act § 10 ; Marine Midland Bank v State of New York, 195 AD2d 871, 872 [3d Dept 1993], lv denied 82 NY2d 661 ). Mr. Buggs' proposed claim is subject to the three-year statute of limitations for negligence actions and, as such, it is not time-barred (see CPLR 214 ).
Discretionary relief from the failure to comply with the time constraints in the Court of Claims Act is authorized under § 10 (6), which identifies six factors among those to be weighed in reviewing such an application. Those factors consist of the following: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file and serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has any other available remedy.
The Court will first address the question of merit, which has been characterized as the most decisive factor, since it would be futile to permit a meritless claim to proceed (see Dippolito v State of New York, 192 Misc2d 395, 396-397 ; Matter of Santana v New York State Thruway Auth., 92 Misc2d 1 ). To meet that burden a movant must establish: that the proposed claim is not patently groundless, frivolous or legally defective; and that from a review of the entire record there is reasonable cause to believe that a valid claim exists (see Dippolito, supra at 396-397; Matter of Santana, supra at 11-12).
The Court finds that the proposed claim has the appearance of merit. Mr. Buggs alleges that he had a medical permit that required him to be placed in a lower bunk, which was not honored by DOCCS officials. While a copy of the permit is not included with the application for late claim relief, sworn allegations in support of such a motion are accepted as true unless refuted (see Cole v State of New York, 64 AD2d 1023, 1024 [4th Dept 1978]). Mr. Buggs' claim that he was issued a medical permit for a bottom bunk is not refuted.
In addition, movant has submitted documentation in support of his argument that a bottom bunk was required. The motion papers include a DOCCS form dated May 6, 2018 that evaluates Mr. Buggs' eligibility to be housed in a double cell (Affidavit in Support of Motion of Lindel Buggs, sworn to May 7, 2021, exhibit A [State of New York - DOCCS Screening and Physical Assessment for Placement in a Double-Cell form]). The form consists of two sections - a Medical Record Screening Review and a Physical Assessment (id.). The last question in each section asks whether, based upon a review of the medical records or the physical assessment, a bottom bunk is required (id). Under the Medical Record Screening Review section, the box is checked to indicate that a bottom bunk is required (id). Under the Physical Assessment section, the box is checked to indicate that a bottom bunk is not required (id.).(1)
In opposition to the motion, defendant argues that the allegations in the proposed claim lack the appearance of merit, in particular, the allegation that DOCCS owed Mr. Buggs a duty to notify his former surgeon that he had fallen and injured his back (see proposed claim, para. seven). The Court agrees that this singular allegation lacks the appearance of merit. However, considering the entirety of the proposed claim, and recognizing that the applicable standard "does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto" (Atkinson v State of New York, UID No. 2007-040-029 [Ct Cl, McCarthy, J., June 1, 2007]),(2) the Court finds that Mr. Buggs has demonstrated the appearance of merit with regard to his primary allegations of negligence involving DOCCS' alleged refusal to honor his medical permit for a bottom bunk.
The Court will next examine the excuse proffered for the late claim. Mr. Buggs alleges that he did not timely file his claim because he was incarcerated and lacked access to legal resources, there was a global pandemic, and he needed time to recover from his September 30, 2020 back surgery. It is well settled that incarceration is not an acceptable excuse for the failure to timely file and serve a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002]). The other excuses offered by movant, the pandemic and the need to recover from his September 30, 2020 surgery, both occurred well after the 90-day period during which he had to timely file and serve his claim ended and, thus, are more relevant to the factor of potential prejudice than excuse (see Cole, supra at 1024). This factor weighs in defendant's favor.
Next, the Court will evaluate the factors of notice, opportunity to investigate and prejudice, which are often considered together (see Brewer v State of New York, 176 Misc2d 337 ). Movant's medical records from DOCCS confirm that he reported rolling off the top bunk on October 16, 2018 and experiencing 10 out of 10 lower back pain. The records also reflect that a DOCCS physician issued a verbal order for Mr. Buggs to be taken to an outside hospital by ambulance for evaluation of his injuries. As such, DOCCS was on notice that movant had fallen and it had an opportunity to investigate the circumstances of his fall. Mr. Buggs avers in a cursory fashion that defendant will not be prejudiced by his late claim. There is, however, no indication that defendant will be prejudiced if the motion is granted. The Court finds that the three interrelated factors of notice, opportunity to investigate and prejudice weigh in movant's favor.
The last statutory factor is whether there is an alternate remedy available. It does not appear that an alternate remedy exists. As such, this factor weighs in movant's favor.
The Court finds that on balance the section 10 (6) factors weigh in favor of granting late claim relief.
Based upon the foregoing, it is hereby
ORDERED, that the motion is granted. Movant is to file and serve his claim within 45 days of the date of the filing of this Decision and Order, in conformity with the requirements of Court of Claims Act §§ 10, 11 and 11-a.
October 8, 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, dated May 10, 2021, filed May 12, 2021;
2. Affidavit in Support of Motion of Lindel Buggs, sworn to May 7, 2021, with attachments;
3. Affirmation in Opposition to Motion to Serve a Late Claim of Carlton K. Brownell, III, dated June 16, 2021, filed June 21, 2021; and
4. Opposition in Response to Defendant's Motion to Dismiss of Lindel Buggs, with attached exhibits, sworn to July 14, 2021, unfiled.
1. It is unclear whether a positive finding in one section as to the need for a bottom bunk overrides a negative finding in the other section of the form.
2. Unpublished decision and orders may be found on the Court's website at