Opinion
# 2020-053-510 Motion No. M-94690
02-04-2020
M.H. v. STATE OF NEW YORK
M.H., Pro Se HON. LETITIA JAMES New York State Attorney General BY: Ray A. Kyles, Esq. Assistant Attorney General
Synopsis
The pro se movant's motion for permission to late file a claim based on an alleged assault is denied without prejudice. Movant failed to submit a proposed claim with the motion and to address the statutory factors in Court of Claims Act 10 (6).
Case information
| UID: | 2020-053-510 |
| Claimant(s): | M.H. |
| Claimant short name: | M.H. |
| Footnote (claimant name) : | The Court has amended the caption sua sponte in accordance with 22 NYCRR § 206.5 (e) as the proposed "motion of intention" alleges that the movant was a victim of a sexual assault. |
| 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-94690 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | M.H., Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES New York State Attorney General BY: Ray A. Kyles, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 4, 2020 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Pro se movant M. H. moves this Court for permission to late file and serve a claim pursuant to Court of Claims Act § 10 (6) based on an alleged assault which occurred on June 17, 2019. Defendant opposes the motion.
A motion for permission to late file and serve a claim must be brought "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 (Court of Claims Act § 10 [6]). Actions against a citizen of the state for an assault are governed by the one-year intentional tort statute of limitations of CPLR 215 (3). Movant's motion was filed on November 6, 2019, within one year of the alleged assault. Accordingly, movant's motion is timely.
Section 10 (6) of the Court of Claims Act also requires that "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application." The failure to include the proposed claim is a basis, in and of itself, for denial of the motion (Davis v State of New York, 28 AD2d 609 [3d Dept 1967]; Roman v State of New York, UID No. 2015-040-030 [Ct Cl, McCarthy, J. June 15, 2015]). Movant has attached to his motion, at least as filed, a document entitled "motion of intention to file claim," but has not submitted a proposed claim. Even if the labeling of movant's "motion of intention" was disregarded, this document is not verified. Moreover, it does not appear as if movant's "motion of intention" was included in the motion papers served on the Attorney General's Office (see Defendant's Exhibit A). In fact, nothing contained in the documents served upon the Attorney General would even suggest that movant is attempting to late file a claim based on an alleged assault. The absence of a proposed claim is sufficient basis to deny movant's motion.
While Court of Claims Act § 10 (6) grants the Court broad discretion to permit the late filing of a claim, the Court must first consider the following 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 [movant] has any other available remedy." The factors enumerated in the statute are not exhaustive and the presence or absence of any one factor 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]).
Movant, however, has failed to address all but one of these statutory factors. In support of his motion, movant alleges that the delay in filing a claim was excusable as he is a layman and unfamiliar with the deadlines for filing a claim. Neither incarceration nor ignorance of the law are acceptable excuses for the delay in filing a claim (Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]; Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]). This factor weighs against movant's motion. Moreover, the failure of movant to even address the remaining statutory factors dictates against the granting of his motion.
Based on movant's failure to submit a proposed claim and to address the statutory factors listed in Court of Claims Act § 10 (6), movant's motion no. M-94690 for permission to late file a claim is denied, without prejudice. Movant may file a subsequent motion for permission to late file a claim that includes a notice of motion and a proposed claim which is in compliance with Court of Claims Act § 11 (b) and is accompanied by an affidavit which addresses all of the factors set forth in Court of Claims Act § 10 (6). Any subsequent motion must be filed prior to the expiration of the applicable statute of limitations.
February 4, 2020
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of motion and affidavit of M. H. sworn to September 25, 2019, with enclosures; and 2. Opposing affirmation of Assistant Attorney General Ray A. Kyles dated November 4, 2019, with annexed Exhibit A.