Opinion
# 2017-040-106 Claim No. NONE Motion No. M-90442
08-08-2017
MARCUS WILLIAMS v. THE STATE OF NEW YORK
Marcus Williams, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG
Synopsis
Motion for permission to serve and file a Claim late granted in part.
Case information
| UID: | 2017-040-106 |
| Claimant(s): | MARCUS WILLIAMS |
| Claimant short name: | WILLIAMS |
| 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-90442 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Marcus Williams, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | August 8, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the application of pro se Movant, Marcus Williams, to serve and file a late claim pursuant to Court of Claims Act § 10(6), is granted in part.
The proposed Claim, attached to the Motion papers, alleges that Movant was incarcerated at Bare Hill Correctional Facility on December 7, 2015, and, between 5:00 and 6:00 p.m.: that Movant was assaulted by several correction officers, including a named sergeant; that he was then placed in a Special Housing Unit (hereinafter, "SHU") cell and denied medical treatment for several days; and that he finally was taken to the medical unit, where it was determined he had several broken ribs and he was taken to an outside hospital. Movant alleges that: (1) he was assaulted by the officers; (2) the State was negligent in that the officers were improperly supervised; (3) Defendant failed to provide medical care for two days; and (4) his 8th Amendment rights to be free from cruel and unusual punishment were violated.
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if 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 asserts two causes of action for negligence (CPLR § 214[5], a three-year Statute of Limitations). Movant asserts that the claim accrued on December 7, 2015. The Court concludes that, based upon the information provided in the proposed Claim, the statute of limitations had not yet expired as to these two causes of action. As to any cause of action for constitutional tort, a three-year statute of limitations applies (CPLR § 214[5]). Thus, the Motion also appears to be timely for a cause of action asserting a violation of Movant's constitutional rights, based upon the accrual date Movant asserts.
Movant also asserts a cause of action for assault, an intentional tort by State employees (CPLR § 215[3], a one-year Statue of Limitations). As the alleged assault occurred on December 7, 2015, this cause of action is untimely and the Motion as to the assault cause of action is denied (Arbor Hill Partners v New York State Commr. of Hous. & Community Renewal, 267 AD2d 675 [3d Dept 1999]; Marine Midland Bank v State of New York, 195 AD2d 871 [3d Dept 1993], lv denied 82 NY2d 661 [1993]).
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant 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 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Here, Movant asserts that he did not timely file the Claim because of difficulties associated with being confined to a correctional facility in obtaining legal assistance and access to the law library (Williams Affidavit, ¶ 2). Confinement to a correctional facility is not an acceptable excuse for failure to timely file a claim (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]). In addition, Movant asserts that he did not timely serve and file a Claim because of the injuries sustained in the alleged assault and because he was suffering from depression because of the deaths of several close family members. Movant asserts that he received news of the first death after he was released from SHU in March 2016 (id.). The excuse for failing to timely file must relate to the initial 90-day period (see Bloom v State of New York, 5 AD2d 930 [3d Dept 1958]). Here, the 90-day period expired March 7, 2016. However, Movant has submitted neither a physician's affidavit nor hospital records to establish the length of time of his alleged incapacity (Cabral v State of New York, 149 AD2d 453 [2d Dept 1989]; Goldstein v State of New York, 75 AD2d 613 [2d Dept 1980]; Rios v State of New York, 67 AD2d 744 [3d Dept 1979]). There is no indication why he could not serve a notice of intention to file a claim prior to expiration of the statutory period. However, 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 v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., supra 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. Defendant does not argue lack of notice of the essential facts, lack of opportunity to investigate, or that it will be substantially prejudiced by a delay in filing a claim (see Affidavit in Opposition of Paul F. Cagino, Esq., Assistant Attorney General). Those factors, therefore, weigh in Movant's favor.
The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does have a possible alternate remedy against the alleged assailants.
The sixth, final 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, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
At this stage of the proceeding, it should be noted the Court generally takes as true factual allegations of Movant. Based upon the entire record, including the proposed Claim, the Court finds that the proposed Claim relating to the two negligence causes of action (improper supervision of the correction officers and delay in providing medical care) have the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.
Movant also asserts a constitutional tort cause of action based on violations of his Federal Constitutional rights. No action may be maintained in this Court against the State for alleged Federal constitutional violations (Shelton v New York State Liquor Auth., 61 AD3d 1145, 1151 [3d Dept 2009]; Lyles v State of New York, 194 Misc 2d 32, 35-36 [Ct Cl 2002], affd 2 AD3d 694, 696 [2d Dept 2003], affd on other grounds 3 NY3d 396 [2004]; Matter of Thomas v New York Temporary State Comm. on Regulation of Lobbying, 83 AD2d 723 [3d Dept 1981], affd 56 NY2d 656 [1982]). To the extent that Claimant asserts Federal constitutional violations, his remedy lies elsewhere. As this Court has no jurisdiction over this cause of action, the Court concludes that Movant has failed to establish that this cause of action has the appearance of merit.
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant's favor as to two causes of action only. The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, supra at 1036). Movant has provided ample basis for a favorable exercise of this Court's discretion to grant him leave to file a late claim against the State as set forth above asserting causes of action for negligent supervision of the correction officers who allegedly assaulted him and negligence in allegedly not providing him timely medical care. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the office of the Clerk of the Court his proposed Claim only with respect to those two causes of action, as set forth above, against the State of New York and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing his Claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
August 8, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered on Movant's application for permission to file a late claim: Papers Numbered Notice of Motion, Affidavit in Support, & Exhibits Attached 1 Affirmation in Opposition 2