Opinion
# 2018-041-078 Motion No. M-92702
11-21-2018
ANTHONY FISHER, JR. v. THE STATE OF NEW YORK
HELD & HINES, LLP By: Philip M. Hines, Esq. HON. BARBARA D. UNDERWOOD New York State Attorney General By: Michael T. Krenrich, Esq. Assistant Attorney General
Synopsis
Application to file and serve late claim alleging that correction officer used excessive force on claimant is granted as allegations provide reasonable excuse for delay and cause to believe a valid cause of action may exist.
Case information
| UID: | 2018-041-078 |
| Claimant(s): | ANTHONY FISHER, JR. |
| Claimant short name: | FISHER |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The caption is amended to state the proper defendant. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-92702 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | HELD & HINES, LLP By: Philip M. Hines, Esq. |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD New York State Attorney General By: Michael T. Krenrich, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | November 21, 2018 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant opposes the claimant's application.
The proposed claim alleges that on April 11, 2018, claimant was subjected to excessive force and assault and battery by a correction officer at Eastern Correctional Facility (Eastern) resulting in hospitalization for an injured urethra at Ellenville Hospital, Albany Medical Center Hospital and the Eastern Infirmary from April 12, 2018 through July 13, 2018 (92 days).
According to claimant's affidavit supporting his late claim application, a "suprapubic catheter was surgically inserted into [claimant's] swollen bladder" and claimant continued "to rely on the suprapubic catheter to urinate and [has] a surgery scheduled for September 2018 to repair my urethra injured during the excessive force incident."
Court of Claims Act section 10 required that the claim, or a notice of intention to file a claim, be served within ninety days of the claim's accrual on April 11, 2018, or, specifically, on or before July 10, 2018. Claimant failed to either file and serve a claim or serve a notice of intention to file a claim within the statutory period.
Court of Claims Act 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."
The late claim application was served on or about August 13, 2018, one-hundred and twenty-four (124) days after the alleged use of excessive force on April 11, 2018, and thirty-four (34) days after the ninety day filing and service period had expired.
The late claim application is therefore not barred by CPLR Article 2.
In determining the application, Court of Claims Act § 10 (6) provides that:
"[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."
In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act § 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).
Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).
Claimant seeks to excuse his delay in filing and serving the claim by alleging that he was "under medical disability and confined to the infirmary at Eastern Correctional Facility until July 13, 2018," after the ninety day filing and service period set forth in Court of Claims Act section 10 had expired.
Claimant further states that he was denied use of a telephone during his hospitalization and was unable to speak to an attorney until briefly speaking with his present counsel at the infirmary on May 31, 2018. Claimant thereafter attempted to retain his present counsel but was "unable to execute the retainer agreement until July 9, 2018" due to Eastern Correctional Facility restrictions.
The Court finds that claimant has offered a reasonable excuse for his failure to timely file and serve the claim. Even if claimant had failed to do so, "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, Inc., 55 NY2d at 981).
Defendant does not deny notice of the essential facts constituting the claim and does not deny having had an opportunity to investigate the circumstances underlying the claim and, as set forth in facility documents attached to the application, has investigated the incident.
The Court finds that the relatively short period of time which elapsed between the expiration of the claim's filing and service period on July 10, 2018 and the service of the application on or about August 13, 2018, together with defendant's immediate investigation of the incident, demonstrate that the "delay was minimal and the respondent was not prejudiced thereby" (Hughes v State of New York, 25 AD3d 800 [2d Dept 2006]). In this regard, it is generally recognized that prejudice is more likely to result where a proposed claim involves conditions (such as ice or snow) which are "transitory in nature" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]). The proposed claim does not arise from a transitory condition.
Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 833-834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
Defendant has not offered an affidavit disputing the factual allegations of the proposed claim and the allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).
The Court finds that the proposed claim, alleging that defendant's correction officer subjected claimant to excessive force and/or assaulted claimant, is not patently without merit, and, accepting the claimant's allegations as true, provides cause to believe that a meritorious cause of action may exist.
Based upon a balancing of the factors set forth in section 10 (6), the Court grants the motion and claimant is directed to file and serve his claim in compliance with this Decision and Order and sections 11 and 11-a of the Court of Claims Act, within forty-five (45) days of the filing of this Decision and Order.
November 21, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Petition, filed August 13, 2018; 2. Affidavit of Anthony Fisher, Jr., sworn to August 8, 2018, and attached exhibits, including proposed claim and affirmation of Philip M. Hines, dated August 13, 2018; 3. Affirmation in Opposition of Michael T. Krenrich, dated September 19, 2018, and attached exhibit; 4. Reply Affirmation of Philip M. Hines, dated September 25, 2018.