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Harris v. State

New York State Court of Claims
Jan 12, 2015
# 2015-032-002 (N.Y. Ct. Cl. Jan. 12, 2015)

Opinion

# 2015-032-002 Claim No. None Motion No. M-85506

01-12-2015

DAMECHA HARRIS v. THE STATE OF NEW YORK

Damecha Harris, Pro Se Hon. Eric T. Schneiderman, NYS Attorney General By: Douglas R. Kemp, Assistant Attorney General, Of Counsel


Synopsis

Case information

UID:

2015-032-002

Claimant(s):

DAMECHA HARRIS

Claimant short name:

HARRIS

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-85506

Cross-motion number(s):

Judge:

JUDITH A. HARD

Claimant's attorney:

Damecha Harris, Pro Se

Defendant's attorney:

Hon. Eric T. Schneiderman, NYS Attorney General By: Douglas R. Kemp, Assistant Attorney General, Of Counsel

Third-party defendant's attorney:

Signature date:

January 12, 2015

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Damecha Harris (movant), an inmate proceeding pro se, moves this Court for an Order pursuant to Court of Claims Act § 10 (6) granting him permission to file and serve a late claim. His proposed claim alleges that he was assaulted and battered by various sergeants and correction officers at Coxsackie Correctional Facility on or about March 16, 2012, in retaliation for reporting an injury that was inflicted upon him by a correction officer. He also alleges cruel and unusual punishment in violation of the State and Federal Constitutions.

The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must first determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10 [6]). These factors are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the State was substantially prejudiced; (5) whether the claimant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10 [6]). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the claimant's application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).

In the present case, movant's proposed cause of action for assault and battery is an intentional tort subject to a statute of limitations of one year from the date of accrual (CPLR 215 [3]). As the accrual date alleged herein is March 16, 2012, and movant's application for late claim relief was filed on August 11, 2014, his proposed cause of action for assault and battery is untimely and therefore his application must be denied.

A cause of action alleging a constitutional tort under the New York State Constitution is subjected to the three-year statute of limitations applicable to personal injury actions set forth in CPLR 214 (5) (Brown v State of New York, 250 AD2d 314 [3d Dept 1998]). Accordingly, movant's cause of action seeking relief for the same would be timely. However, State constitutional tort actions may be maintained only when the injured party has no alternative avenues of redress (see Brown v State of New York, 89 NY2d 172 [1996]; Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]); Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]). In the present case, movant's constitutional causes of action could have been brought in Supreme Court under the parallel Federal Constitutional provisions against the individuals whose conduct is at issue. As such, it is not necessary for said cause of action to be maintained here. Movant's request for permission to file and serve a late claim alleging the same is therefore denied.

To the extent movant alleges a proposed civil rights claim based upon violations of the United States Constitution, his application must be denied. Civil actions seeking to enforce rights created by the United States Constitution are governed by 42 USC § 1983, and the State of New York is not a "person" amenable to suit under this statute (Will v Michigan Dept. of State Police, 491 US 58 [1989]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]). Accordingly, the Court lacks subject matter jurisdiction and any such proposed cause of action is without merit.

The Court has considered the factors set forth in Court of Claims § 10 (6) and concludes that movant's motion for permission to file and serve a late claim (Motion No. M-85506) must be and hereby is denied.

January 12, 2015

Albany, New York

JUDITH A. HARD

Judge of the Court of Claims

Papers Considered:

Notice of Motion, dated July 24, 2014; and proposed Claim, with Exhibits.
Letter from claimant, dated September 9, 2014.
Affirmation in Opposition to Motion to Late File, affirmed by Douglas R. Kemp, AAG, on September 12, 2014.
Affirmative Defense of Justification in Response to the Respondent's Opposition to Motion to Late File, signed by claimant on October 4, 2014.


Summaries of

Harris v. State

New York State Court of Claims
Jan 12, 2015
# 2015-032-002 (N.Y. Ct. Cl. Jan. 12, 2015)
Case details for

Harris v. State

Case Details

Full title:DAMECHA HARRIS v. THE STATE OF NEW YORK

Court:New York State Court of Claims

Date published: Jan 12, 2015

Citations

# 2015-032-002 (N.Y. Ct. Cl. Jan. 12, 2015)