Opinion
# 2017-040-126 Claim No. 129001 Motion No. M-90373 Motion No. M-90629
09-18-2017
MATTHEW ALIAGA (16A1191), RAYMOND BROCCOLI (16A2029), COLE BRYANT (04B1046), MARK CANADA (14A0371), SHABAR CHAMBERS (11A1950), CARL CHAMPAGNE (16A0647), LENARD COX (16B1623), JEREMY DAME (15A2125), JACE DAVIS (11B0318), PABLO DONES (14R2879), KYLE FINCH (16B1152), NELSON FRISZELL (15R1284), KEITH GATES (15A4186), FRANK GILLARD (14A5535), SOLOMON HALL (11B0231), ALEC HAMMOND (14A2787), GEORGE HOGAN (15A1207), BRIAN KELLY (14A4562), TONY KING (89A1642), KYLE LOUCKS (16A2272), EZEQUIEL MARTINEZ (14B3796), ISRAEL MIRANDA (15B0603), RICARDO MOORE (14A2413), GREGORY PEARSALL (10R1215), MATTHEW PETRILLO (11A3786), ALEX ROBLES (12A0510), LORENZO ROMAINE (14B2805), MICHAEL RUSSELL (09A6073), DEAN WAINWRIGHT (16A1083), RALPH WHITE (16A0746), JEREMIAH WILLIAMS (16B1103), STACEY WYNE (12R2373) v. THE STATE OF NEW YORK
SIVIN & MILLER, LLP By: Moses Ahn, Esq. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joseph F. Romani, Esq., AAG
Synopsis
Motion to serve and file a Claim late granted.
Case information
| UID: | 2017-040-126 |
| Claimant(s): | MATTHEW ALIAGA (16A1191), RAYMOND BROCCOLI (16A2029), COLE BRYANT (04B1046), MARK CANADA (14A0371), SHABAR CHAMBERS (11A1950), CARL CHAMPAGNE (16A0647), LENARD COX (16B1623), JEREMY DAME (15A2125), JACE DAVIS (11B0318), PABLO DONES (14R2879), KYLE FINCH (16B1152), NELSON FRISZELL (15R1284), KEITH GATES (15A4186), FRANK GILLARD (14A5535), SOLOMON HALL (11B0231), ALEC HAMMOND (14A2787), GEORGE HOGAN (15A1207), BRIAN KELLY (14A4562), TONY KING (89A1642), KYLE LOUCKS (16A2272), EZEQUIEL MARTINEZ (14B3796), ISRAEL MIRANDA (15B0603), RICARDO MOORE (14A2413), GREGORY PEARSALL (10R1215), MATTHEW PETRILLO (11A3786), ALEX ROBLES (12A0510), LORENZO ROMAINE (14B2805), MICHAEL RUSSELL (09A6073), DEAN WAINWRIGHT (16A1083), RALPH WHITE (16A0746), JEREMIAH WILLIAMS (16B1103), STACEY WYNE (12R2373) |
| Claimant short name: | ALIAGA, ET AL. |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 129001 |
| Motion number(s): | M-90373, M-90629 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | SIVIN & MILLER, LLP By: Moses Ahn, Esq. |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joseph F. Romani, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | September 18, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the Motion of Claimants Solomon Hall, Matthew Petrillo, and Alex Robles (M-90373): (1) to deem the Claim of these three Claimants to be timely filed and served nunc pro tunc is denied; (2) to strike the first affirmative defense in the State's Answer to the Claim is denied; and (3) to serve and file a Claim late pursuant to Court of Claims Act § 10(6) is granted as to Claimants Solomon Hall and Matthew Petrillo, and denied as unnecessary as to Claimant Alex Robles. The Motion of Claimant Lenard Cox and Movant, Roy Bowers (M- 90629): (1) to serve and file an Amended Claim is denied; (2) to strike the first affirmative defense in the State's Answer to the Claim is denied; and (3) to serve and file a Claim late pursuant to Court of Claims Act § 10(6) is granted.
The Claim, which was filed with the office of the Clerk of the Court on December 28, 2016, alleges that the Claim arose on July 6, 2016, beginning at about 8:00 a.m. in Housing Unit 4H at Mid-State Correctional Facility (hereinafter, "Mid-State"), when dozens of correction officers (hereinafter, "CO"), including supervisory personnel, stormed Housing Unit 4H and, without provocation or justification, brutally assaulted and battered each of the Claimants and intentionally destroyed their personal property. Thereafter, the COs and medical staff at Mid-State intentionally and deliberately denied and refused necessary medical attention and treatment to the Claimants for the injuries they sustained. Additionally, the COs threatened the Claimants with physical harm, death, and other acts of illegal retribution, in the event they complained about or reported the assault (Claim, ¶ 4).
First, the portion of Motion M-90373, which seeks to deem the current Claim (Claim No. 129001), to be timely filed and served nunc pro tunc as to Claimants Hall, Petrillo and Robles is denied as nunc pro tunc relief is not available in the Court of Claims (Byrne v State of New York, 104 AD2d 782, 783 [2d Dept 1984], lv denied 64 NY2d 607 [1985]; Smith v State of New York, 53 AD2d 756, 758 [3d Dept 1976], affd 41 NY2d 1063 [1977]; Mattaway v State of New York, UID No. 2016-049-017 [Ct Cl, Weinstein, J., Apr. 25, 2016]).
Second, the portion of both Motions which seek to strike the first affirmative defense raised in the State's Answer is denied. The State's Verified Answer to the Claim, which was filed with the office of the Clerk of the Court on January 30, 2017, denies the allegations contained in paragraphs 4 and 6 of the Claim, and neither admits nor denies much of the rest. The State also asserts 10 affirmative defenses in its Answer.
CPLR 3018 relates to responsive pleadings. Subdivision (a) refers to denials and states that "[a] party shall deny those statements known or believed by him to be untrue. He shall specify those statements as to the truth of which he lacks knowledge or information sufficient to form a belief and this shall have the effect of a denial."
According to Professor Patrick M. Connors, when an allegation is denied, the allegation must be proved by the party pleading it (see Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3018:2, at 299). The burden is thus upon the Claimants/Movants to establish the allegations that were denied in the State's Answer.
A motion to dismiss defenses may be made on the ground that a defense is not stated or has no merit (CPLR 3211[b]). "[A]n affirmative defense should not be dismissed if there is any doubt as to its availability" (Thy Tran v Avis Rent A Car, 289 AD2d 731, 732 [3d Dept 2001]; see Nahrebeski v Molnar, 286 AD2d 891 [4th Dept 2001]). "It is well settled that '[o]n a motion to dismiss a defense pursuant to CPLR 3211(b), all of defendant's allegations must be deemed to be true and defendant is entitled to all reasonable inferences to be drawn from the submitted proof' " (Capital Tel. Co. v Motorola Communications and Elecs., 208 AD2d 1150, 1150 [3d Dept 1994 quoting Grunder v Recckio, 138 AD2d 923, 923 [4th Dept 1988]; see Suarez v State of New York, 60 AD3d 1243 [3d Dept 2009]). Moreover, the movant "[bears] the burden of demonstrating that those defenses [are] without merit as a matter of law" (Vita v New York Waste Services, LLC, 34 AD3d 559, 559 [2d Dept 2006]; see Suarez v State of New York, 14 Misc 3d 1230[A] [Ct Cl 2006], affd 60 AD3d 1243, supra).
The first affirmative defense asserts "[t]hat this Court lacks subject matter jurisdiction of the [C]laim and personal jurisdiction over the [D]efendant, the State of New York, as the claims [of] Alex Robles, Leonard [sic] Cox, Solomon Hall, and Matthew Petrillo are untimely in that neither the [Claim] nor a [N]otice of [I]ntention was served within ninety (90) days of the accrual of the [C]laim as required by Court of Claims Act §§ 10 and 11." Defendant has acknowledged that a Notice of Intention for Claimant Alex Robles appears to have been timely received in the Attorney General's Office on September 29, 2016 (Affirmation in Opposition to Motion No. M-90373, ¶ 5; see Ex. 7 attached to each Motion). With respect to the other Claimants, however, if proved, this defense would result in the Claim's dismissal. Accordingly, this defense must stand pending a determination of the issue.
Third, the portion of Motion M-90629 to serve and file an Amended Claim is denied as a claim that suffers from a fatal jurisdictional defect (such as the failure to timely serve a Notice of Intention, thus extending Claimants' time to timely serve and file a Claim) cannot be cured by amendment (see Manshul Constr. Corp. v State Ins. Fund, 118 AD2d 983, 985 [3d Dept 1986]; Grande v State of New York, 160 Misc 2d 383, 385 [Ct Cl 1994]; Flemming v State of New York, UID No. 2012-038-564 [Ct Cl, DeBow, J., Sept. 25, 2012]).
Fourth, the Court turns to the portion of both Motions seeking permission to serve and file a Claim late. Attached to the affirmations of counsel, Moses Ahn, Esq., are copies of the Claim (Ex. 1 attached to Motion M-90373; Ex. 1 attached to Motion M-90629) and a proposed Amended Claim (Ex. 11 attached to Motion M-90629). These documents recite all the same facts and are almost identical. The Court, for purposes of these Motions, will consider Exhibit 1 attached to Motion M-90373 and Exhibit 11 attached to Motion M-90629 to be the "proposed Claims." The proposed Claims each allege the same information as set forth above regarding the incident of July 6, 2016 at Mid-State.
Court of Claims Act § 10(6) provides that a claimant who fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention, as provided in § 10 within the time limits provided, may, nevertheless, in the discretion of the court, be permitted to file such claim before the applicable statute of limitations set forth in Article 2 of the CPLR has expired. Here, as Defendant has conceded that the Notice of Intention of Claimant Alex Robles was received by the Attorney General's Office on September 29, 2016, there is no need for that Claimant to file a Claim late and his request to do so is denied as moot, as Defendant concedes that the Notice of Intention served upon Defendant by Mr. Robles was timely received within 90 days of the Claim's accrual.
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 a cause of action for assault and battery (CPLR 215 [3], a one-year Statute of Limitations) and negligent conduct against the Claimants (CPLR § 214[5], a three-year statute of limitations). Thus, whether Claimants are asserting Claims sounding in intentional torts or negligence, the Motions are timely.
For ease of reference, when the Court refers to Claimants Hall, Petrillo, Robles, Cox, and Movant Bowers, collectively for purposes of this portion of the Motions, they will be referred to as "Claimants," even though Mr. Bowers is not listed as one of the 32 Claimants in Claim No. 129001.
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]). Claimants 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 Claimants to persuade the Court to grant their late claim motions (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. Claimants assert that they did not serve and file a timely Claim because of their status as inmates and fear of retaliation from prison officers. However, neither incarceration nor fear of retaliation are acceptable excuses for failure to meet the filing and service requirements of the Court of Claims Act (Smalls v State of New York, UID No. 2004-015-431 [Ct Cl, Collins, J., Oct. 28, 2004]; Boyd v State of New York, UID No. 2004-030-512 [Ct Cl, Scuccimarra, J., Mar. 3, 2004]). 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 admits that it had notice of the essential facts and that the State has conducted an investigation into the alleged incident (Affirmations in Opposition of Joseph F. Romani, Esq., Assistant Attorney General, ¶ 13 [Motion M-90373], and ¶ 11 [Motion M-90629]). In addition, Defendant does not argue that it will be substantially prejudiced by a delay in filing a claim. Those factors, therefore, weigh in Claimants' favor.
The fifth factor to be considered is whether Claimants have another remedy available. It appears that they do 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 Claimants' burden to show that their Claims are 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 Claimants to establish definitively the merit of their Claims, or overcome all legal objections thereto, before the Court will permit Claimants to file late claims (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 Claimants. Based upon the entire record, the Court finds that the proposed Claims have the appearance of merit. Claimants need only establish the appearance of merit; they need not prove a prima facie case at this stage of the proceedings.
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Claimants' favor. 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 were 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). Claimants have provided ample basis for a favorable exercise of this Court's discretion to grant them leave to file a late claim against the State as set forth above. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Claimants (Messrs. Hall, Petrillo, Cox, and Bowers) shall file with the Clerk of the Court their proposed Claim against the State and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing the Claims, Claimants are 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.
September 18, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read on Claimants' Motions: Papers Numbered: Motion No. M-90373 Notice of Motion, Affirmation in Support & Exhibits attached 1 Affirmation in Opposition 2 Reply Affirmation 3 Motion No. M-90629 Notice of Motion, Affirmation in Support & Exhibits attached 4 Affirmation in Opposition 5 Reply Affirmation 6 Papers Filed: Claim, Answer