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Nieves v. State

New York State Court of Claims
Apr 30, 2014
# 2014-038-517 (N.Y. Ct. Cl. Apr. 30, 2014)

Opinion

# 2014-038-517 Motion No. M-84572

04-30-2014

BRANDON NIEVES v. THE STATE OF NEW YORK

BRANDON NIEVES, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New YorkBy: Douglas R. Kemp, Assistant Attorney General


Synopsis

Motion for late claim relief denied. None of the factors of Court of Claims Act § 10 (6) weigh infavor of the application, and inasmuch as the proposed claim does not satisfy the jurisdictionalpleading requirements of Court of Claims Act § 11 (b), the proposed claim is legally defectiveand therefore lacking in merit within the meaning of Court of Claims Act § 10 (6).

Case information

UID:

2014-038-517

Claimant(s):

BRANDON NIEVES

Claimant short name:

NIEVES

Footnote (claimant name) :

Defendant(s):

THE STATE OF NEW YORK

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

None

Motion number(s):

M-84572

Cross-motion number(s):

Judge:

W. BROOKS DeBOW

Claimant's attorney:

BRANDON NIEVES, Pro se

Defendant's attorney:

ERIC T. SCHNEIDERMAN, Attorney General of the State of New YorkBy: Douglas R. Kemp, Assistant Attorney General

Third-party defendant'sattorney:

Signature date:

April 30, 2014

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

Decision

Claimant, an individual incarcerated in a State correctional facility, moves pursuant toCourt of Claims Act § 10 (6) for permission to file and serve a late claim. The motion isaccompanied by a document that appears to be a proposed claim, and which defendant treats assuch. Defendant opposes the motion on several grounds.

The proposed claim asserts that claimant arrived at Upstate Correctional Facility and thathe was "visualized" by correctional facility physicians on August 5, 2013 and September 23,2013 for specific urgent reasons. The remainder of the proposed claim includes allegationsrelating to claimant's health, and appears to allege that the medical staff failed to "visualize"and/or properly treat his chronic medical conditions on a number of other occasions. The onlyother date included in the proposed claim is January 8, 2014, a date which appears to related to aclaim for lost personal property, and not the medical issues that are asserted in the proposedclaim.

Upon a motion pursuant to Court of Claims Act § 10 (6), a Court must consider, amongother factors, "whether the delay in filing the claim was excusable; whether the state had noticeof the essential facts constituting the claim; whether the state had an opportunity to investigatethe circumstances underlying the claim; whether the claim appears to be meritorious; whether thefailure to file or serve upon the attorney general a timely claim or to serve upon the attorneygeneral a notice of intention resulted in substantial prejudice to the state; and whether theclaimant has any other available remedy." The presence or absence of any particular factor is notcontrolling (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys.Policemen's and Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]), and the weight accordedthe various factors is a matter within the discretion of the Court.

The appearance of merit to a proposed claim is perhaps the most significant factor for theCourt to consider because Court of Claims Act § 10 (6) reflects a legislative determination thatthe Court of Claims should permit a potential litigant to have his or her day in court (see Calzadav State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc2d 1033, 1036 [Ct Cl 1978]), yet a litigant should not be subjected to the futility of pursuing ameritless claim (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter ofSantana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In general, toestablish the merit of the proposed late claim, claimant need not demonstrate a likelihood that hewill prevail on his claim, but the proposed claim may not be legally defective (see Matter ofSantana v New York State Thruway Auth., supra at 11). Here, defendant asserts that the claimdoes not satisfy the pleading requirements of Court of Claims Act § 11 (b), which, if so, is a fataljurisdictional defect that would require dismissal of the claim (see Lepkowski v State of NewYork, 1 NY3d 201, 209 [2003]; Kolnacki v State of New York, 8 NY3d 277, 281 [2007]; seealso Doe v State of New York, UID No. 2013-048-125 [Ct Cl, Bruening, J. Dec. 19, 2013]).

Court of Claims Act § 11 (b) requires that "[t]he claim shall state the time when and placewhere such claim arose, the nature of same, and the items of damage or injuries claimed to havebeen sustained and, except in an action to recover damages for personal injury, medical, dental orpodiatric malpractice or wrongful death, the total sum claimed." Although the proposed claimdemonstrates that it arose at Upstate CF, it does not state the time when it arose. Nor is the claimsufficiently particular to satisfy the "nature of the claim" requirement. "Although absoluteexactness is not required the claim must provide a sufficiently detailed description of theparticulars of the claim to enable [defendant] to investigate and promptly ascertain the existenceand extent of its liability . . . [and] defendant is not required to ferret out or assemble informationthat section 11 (b) obligates the claimant to allege" (Morra v State of New York, 107 AD3d1115, 1115-1116 [3d Dept 2013] [internal quotations and citations omitted]; (see Lepkowski vState of New York, at 207 quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept1980]). Conclusory or general assertions of negligence without factual allegations that revealsome act or omission that would give rise to defendant's liability do not adequately state thenature of the claim (see Grumet v State of New York, 256 AD2d 441 [2d Dept 1998] [claim forslip and fall alleged that defendant was "careless, reckless and negligent"]; Cendales v State ofNew York, 2 AD3d 1165, 1167-1168 [3d Dept 2003] [reference to "medical staff" in notice ofintention to file a claim for injuries during cell extraction was insufficient notice of medicalmalpractice cause of action]; Tamez v New York State Thruway Auth. and State of New York,UID No. 2007-015-213 [Ct Cl, Collins, J., July 10, 2007] [mere allegation of negligenceinsufficient to satisfy Court of Claims Act § 11 (b)]). Here, the proposed claim alleges thatclaimant's allegedly numerous but unspecified requests to be "visualized" by defendant'sphysicians have been to no avail, that provision of Advil by nursing personnel was notappropriate for claimant's ongoing complaints of allegedly chronic and debilitating pain, and thatclaimant "feels as if" his medical care has not been proper. The claim generally alleges aviolation of claimant's 8th amendment right and "deliberate indifference," but it does not stateany injury that claimant has sustained. In the view of the Court, the proposed claim does notsatisfy the jurisdictional pleading requirements of Court of Claims Act § 11 (b), and therefore, itis legally defective and thus lacking in merit within the meaning of Court of Claims Act § 10 (6).

Turning to the other factors set forth in Court of Claims Act § 10 (6), claimant offers onlyboilerplate excuses for the delay in filing this claim - that he is ignorant of the law and that hisincarceration creates hardship in receiving prompt competent legal assistance. However, neitherof these reasons are acceptable excuses for the failure to timely file and serve a claim (see Matterof Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]; Matter of Sandlin v Stateof New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Matter ofThomas v State of New York, 272 AD2d 650, 651 [3d Dept 2000]).

Whether the State had notice of the essential facts constituting the claim and had anopportunity to investigate the circumstances underlying the claim, and whether the failure to fileor serve upon the attorney general a timely claim or to serve upon the attorney general a notice ofintention resulted in substantial prejudice to the State are closely related, and may be consideredtogether (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State ofNew York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Here, as discussed above, the proposed claimdoes not satisfy Court of Claims Act § 11 (b) because the allegations in the proposed claim arevery generalized, and that same defect causes these three factors to weigh against granting themotion. Claimant's application for late claim relief lacks allegations of specific dates uponwhich defendant failed to properly treat his medical conditions, it does not recite any particularrequests that were ignored, nor does it state the names of any of the correctional staff involved inthe alleged negligence. Thus, the proposed claim does not put the State on notice of the essentialfacts constituting the claim, and the State's investigation of the claim would therefore behampered. Further, claimant has neither demonstrated nor argued that defendant had prior noticeof the facts of the claim, that it had an opportunity to investigate, and that the State did not suffersubstantial prejudice as a result of the late filing.

Finally, claimant asserts that he lacks any remedy other than this action.

The Court has considered and weighed all of the factors set forth in Court of Claims Act§ 10 (6), and finds that they weigh heavily against granting the motion for late claim relief. Inparticular and most significantly, because the proposed pleading lacks merit due to itsjurisdictional defect, the motion to serve and file this proposed late claim should not be granted. Accordingly, it is

ORDERED, that claimant's motion number M-84572 is DENIED.

April 30, 2014

Albany, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

(1) Notice of Motion to File Late Claim, dated January 5, 2014;

(2) Affidavit in Support of Motion to File Late Claim, sworn to January 8, 2014;

(3) [Proposed] Claim Medical Negligence, verified January 25, 2014;

(4) Affirmation of Douglas R. Kemp, AAG, in Opposition to Claimant's Motion to Late File,

dated February 14, 2014, with Exhibit A.


Summaries of

Nieves v. State

New York State Court of Claims
Apr 30, 2014
# 2014-038-517 (N.Y. Ct. Cl. Apr. 30, 2014)
Case details for

Nieves v. State

Case Details

Full title:BRANDON NIEVES v. THE STATE OF NEW YORK

Court:New York State Court of Claims

Date published: Apr 30, 2014

Citations

# 2014-038-517 (N.Y. Ct. Cl. Apr. 30, 2014)