Opinion
# 2012-041-059 Motion No. M-81421
07-26-2012
VENICE NESMITH v. THE STATE OF NEW YORK
Synopsis
Application to file late claim alleging that correction officers assaulted claimant is granted as uncontroverted allegations provide cause to believe a valid cause of action may exist and the defendant has not been substantially prejudiced by delay in prosecuting the claim. Case information
UID: 2012-041-059 Claimant(s): VENICE NESMITH Claimant short name: NESMITH Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Caption amended sua sponte to reflect the proper defendant. Third-party claimant(s): Third-party defendant(s): Claim number(s): NONE Motion number(s): M-81421 Cross-motion number(s): Judge: FRANK P. MILANO VENICE NESMITH Claimant's attorney: Pro Se Defendant's attorney: NONE Third-party defendant's attorney: Signature date: July 26, 2012 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 has not opposed the application.
Claimant is an inmate at Clinton Correctional Facility (Clinton). The proposed claim alleges that on October 9, 2011, and again on February 24, 2012, claimant was assaulted by correction officers at Clinton resulting in personal injuries and damages.
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 April 12, 2012, within ninety days of the alleged assault of February 24, 2012, and approximately six months after the alleged assault of October 9, 2011. Claimant's causes of action sounding in intentional assault are 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], appeal denied 78 NY2d 852 [1991]).
Claimant seeks to excuse his delay in filing and serving the claim by alleging that he has a mental disability and was ignorant of the required filing period. Claimant offers no proof of the claimed mental disability and the alleged disability therefore cannot excuse the failure to timely file the claim (see Matter of Best v State of New York, 42 AD3d 699, 700-701 [3d Dept 2007]; Duffy, 264 AD2d at 912). Further, neither ignorance of the law nor "conclusory allegations that one is incarcerated and without access to legal references" constitute a reasonable excuse for untimely filing and service (Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002])
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 had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim based upon contemporaneous inmate misbehavior reports filed by defendant's staff and contemporaneous inmate grievances filed against defendant by claimant.
The Court finds that the relatively short period of time which elapsed between the earliest potential accrual of October 9, 2011 and the service of the application on or about April 12, 2012, together with the filing of the misbehavior reports and grievances, provided defendant ample opportunity to timely investigate the claim as the "delay was minimal and the respondent was not prejudiced thereby" (Matter of 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.
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 employees intentionally assaulted claimant on two separate occasions is not patently without merit, and, accepting the claimant's allegations as true, provides cause to believe that a cause of action exists.
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 an exact copy of the proposed twelve (12) page claim in compliance with §§ 11 and 11-a of the Court of Claims Act within sixty (60) days of the filing of this decision and order with the Clerk of the Court of Claims.
July 26, 2012
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion, filed April 20, 2012;
2. Affidavit of Venice Nesmith, sworn to April 12, 2012, and annexed exhibits.