Opinion
# 2015-018-613 Motion No. M-86159
03-03-2015
JUSTIN ELLIOTT v. STATE OF NEW YORK
JUSTIN ELLIOTT Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire Senior Attorney
Synopsis
The proposed claim attached to the motion to grant a late claim application fails to comply with Court of Claims Act section 11 (b). The claim fails to state where this incident occurred and the injuries Movant sustained, and it is not verified. Failure to comply with the requirements of Court of Claims Act section 11 (b) renders the proposed claim legally defective and motion is DENIED.
Case information
UID: | 2015-018-613 |
Claimant(s): | JUSTIN ELLIOTT |
Claimant short name: | ELLIOTT |
Footnote (claimant name) : | |
Defendant(s): | STATE OF NEW YORK |
Footnote (defendant name) : | |
Third-party claimant(s): | |
Third-party defendant(s): | |
Claim number(s): | NONE |
Motion number(s): | M-86159 |
Cross-motion number(s): | |
Judge: | DIANE L. FITZPATRICK |
Claimant's attorney: | JUSTIN ELLIOTT Pro Se |
Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Thomas Trace, Esquire Senior Attorney |
Third-party defendant's attorney: | |
Signature date: | March 3, 2015 |
City: | Syracuse |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) |
Decision
Movant brings a motion pursuant to Court of Claims Act section 10 (6) seeking permission to bring a late claim. Defendant opposes the motion.
Court of Claims Act § 10 (6) allows a claimant who has failed to properly serve a claim, within the time frame set forth in Court of Claims Act § 10, to make an application to the Court to file such a claim, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR (Court of Claims Act § 10 [6]). Here, the Movant's application is timely (Court of Claims Act § 10 (6); CPLR 215 [3]).
In considering an application for permission to serve a late claim, the Court, in its discretion, may permit the late filing of the proposed claim after consideration is given to the six factors listed in the statute. No one factor is determinative (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]; Ledet v State of New York, 207 AD2d 965 [4th Dept 1994]).
The first factor, whether the delay in filing the claim is excusable weighs against granting Movant's application. Movant asserts that as a lay person he was not aware of the short filing period in the Court of Claims Act. He further asserts that because of his incarceration he had a limited ability to confer with counsel and limited access to legal materials. These are not acceptable excuses (Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003], [lack of awareness of short filing period complicated by incarceration, not acceptable excuses]; Matter of Galvin v State of New York,176 AD2d 1185 [3d Dept 1991], lv denied 79 NY2d 753 [1992], [ignorance of the law is not an acceptable excuse]).
The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. Movant asserts that the correction officers who assaulted him were readily aware of what occurred. The knowledge of the alleged tortfeasors, however, is not imputed to the State and is not notice to someone with supervisory authority who could initiate an investigation into the incident (Tarquinio v City of New York, 84 AD2d 265, 270 [1st Dept 1982], affd sub nom. Pierson v City of New York, 56 NY2d 950 [1982]; Matter of Cooper v City of Rochester, 84 AD2d 947 [4th Dept 1981]; Phillips v State of New York, 36 AD2d 679 [4th Dept 1971]). Movant also alleges that the State had notice, based upon the medical examination by the nurse, pictures, misbehavior report, tier hearing, grievances, and the appeal of the tier hearing disposition. Movant does not elaborate on any of these events or documents, nor does he provide copies of any of the documents. Nonetheless, Defendant has not opposed this motion by anyone with personal knowledge of the matters asserted. Facts stated in an affidavit in support of a motion for permission to file a late claim, are deemed true when not denied or contradicted (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]). Even if the State did not have notice of the underlying facts, Movant indicates that there is documentation regarding this incident in the form of medical records, pictures, and grievances which will still allow the State to investigate. Although the Assistant Attorney General asserts that the State will incur substantial prejudice, he does not indicate how it will be prejudiced. Given the existence of such documentation, such prejudice seems unlikely.
The next factor, whether the claim appears to be meritorious, is a critically important factor. Generally, a proposed claim meets this standard if it is not patently groundless, frivolous or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11).
One requirement with any application for late claim relief is the submission of a proposed claim "containing all of the information set forth in section eleven" of the Court of Claims Act (Court of Claims Act § 10 [6]). Movant has attached as Exhibit A, his proposed claim which is a two-page, handwritten, single paragraph document. The proposed claim describes an incident that occurred on August 16, 2014, when Movant was allegedly assaulted by several correction officers in the "visit frisk room." Movant asserts in the proposed claim that he was grabbed by his hair, shoved in a corner and then on the floor, repeatedly punched in the face and body, and an officer stepped on his face. He asserts that two sergeants and another officer watched at least part of this violent assault. The proposed claim, however, fails to comply with Court of Claims Act section 11 (b) in that the claim fails to state where this incident occurred, and the injuries Movant sustained, and it is not verified. The failure to comply with the requirements of Court of Claims Act section 11 (b) renders the proposed claim legally defective (see Mosby v State of New York, UID No. 2014-018-543 [Ct Cl, Fitzpatrick, J., Nov. 13, 2014]; Nieves v State of New York, UID No. 2014-038-517 [Ct Cl, DeBow, J., April 30, 2014]; Doe v State of New York, UID No. 2013-048-125 [Ct Cl, Bruening, J., Dec. 19, 2013]; Doe v State of New York, UID No. 2007-042-516 [Ct Cl, Siegel J., July 23, 2007]; see generally Kolnacki v State of New York, 8 NY3d 277, 281 [2007]; Lepkowski v State of New York, 1 NY3d 201, 209 [2003]). This factor weighs against granting Movant's application.
The final factor is whether the Movant has any other available remedy. Based upon the allegations in the proposed claim and Movant's assertion, he has no other remedy.
Upon balancing all of the factors in Court of Claims Act § 10 (6), the Court DENIES Movant's application to file and serve a late claim without prejudice to bringing another motion in accordance with Court of Claims Act section 10 (6) with a proper proposed claim before August 16, 2015.
March 3, 2015
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court considered the following documents in deciding this motion:
1) Notice of Motion.
2) Affidavit of Justin Elliott sworn to December 17, 2014, in support, with Exhibit A attached thereto.
3) Affirmation of Thomas Trace, Esquire, Senior Attorney, in opposition.