Opinion
# 2016-041-072 Claim No. NONE Motion No. M-89132
10-24-2016
H.N. v. THE STATE OF NEW YORK
H.N. Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Thomas R. Monjeau, Esq. Assistant Attorney General
Synopsis
Application to file and serve late claim alleging that correction officer sexually abused and used excessive force on claimant is granted as allegations provide cause to believe a valid cause of action may exist.
Case information
| UID: | 2016-041-072 |
| Claimant(s): | H.N. |
| Claimant short name: | H.N. |
| Footnote (claimant name) : | The Court has sua sponte amended the caption to read as set forth to protect the privacy of claimant under Civil Rights Law § 50-B. |
| 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-89132 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | H.N. Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Thomas R. Monjeau, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 24, 2016 |
| 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.
Claimant is presently an inmate at Great Meadow Correctional Facility. The claimant's verified notice of intention to file a claim, which the Court will treat as the proposed claim (see Court of Claims Act 9 (8)), alleges that on January 13, 2016 claimant was sexually abused, and subjected to excessive force, by a correction officer at Clinton Correctional Facility (Clinton) resulting in "several injuries." The proposed claim further alleges that claimant's "subsequent reporting of such incident were systematically ignored."
Court of Claims Act section 10 required that the claim be filed and served within ninety days of January 13, 2016, or, specifically, on or before April 12, 2016.
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 application was served on or about August 9, 2016, approximately seven (7) months after the alleged assault of January 13, 2016 and nearly four (4) months after the ninety day filing and service period had expired. Claimant's cause of action sounding in intentional assault/excessive force is not time-barred by the one-year limitations period provided by CPLR 215.
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 "admitted to and housed in the infirmary units of both [Clinton and Great Meadow Correctional Facilities] from the "date of the incident" until March 28, 2016, fifteen (15) days before the ninety day filing and service period set forth in Court of Claims Act section 10 expired.
Claimant offers no documentary proof of his claimed confinement to the infirmary and no explanation as to why he took no immediate action after leaving the infirmary on March 28, 2016. The alleged hospital confinement therefore cannot excuse the failure to timely file the claim (see Duffy, 264 AD2d at 912).
Although claimant has failed to offer a reasonable excuse for his failure to timely file and serve the claim, "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 denies notice of the essential facts constituting the claim and denies having had an opportunity to investigate the circumstances underlying the claim.
The Court finds that the relatively short period of time which elapsed between the expiration of the claim's filing and service period on April 12, 2016 and the service of the application on or about August 9, 2016, provide defendant ample opportunity to investigate the claim as the "delay was minimal and the respondent was not prejudiced thereby" (Hughes v State of New York, 25 AD3d 800 [2d Dept 2006]), particularly since the proposed claim provides a specific date and circumstance under which the sexual abuse allegedly took place. 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.
Claimant has no available alternative remedy against defendant.
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 employee sexually abused and subjected claimant to excessive force 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 sixty (60) days of the filing of this Decision and Order.
October 24, 2016
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion To Serve Late Notice of Claim, filed August 29, 2016; 2. Affidavit of H.N., sworn to August 9, 2016, and annexed proposed verified claim; 3. Affirmation in Opposition of Thomas R. Monjeau, dated September 21, 2016.