Opinion
# 2015-041-045 Claim No. NONE Motion No. M-86604
07-02-2015
MANUEL QUEZADA v. THE STATE OF NEW YORK
MANUEL QUEZADA Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General
Synopsis
Application to file late claim alleging that the defendant was negligent in failing to "extradite claimant to serve his New York sentence upon completion of his New Jersey sentence" is denied where proposed claim lacks appearance of merit in that defendant neither owed, nor breached, a legal duty to timely extradite and incarcerate claimant nor did any such alleged breach of duty proximately cause the damages alleged in the proposed claim.
Case information
| UID: | 2015-041-045 |
| Claimant(s): | MANUEL QUEZADA |
| Claimant short name: | QUEZADA |
| 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-86604 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | MANUEL QUEZADA Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Douglas R. Kemp, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 2, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate at Altona Correctional Facility, moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant opposes the application.
Claimant previously moved for the same relief, on or about August 14, 2014, and the application was denied "without prejudice" by the Decision and Order of Court of Claims Judge James H. Ferreira, filed January 20, 2015, because the proposed claim failed to adequately state the nature of the claim as required by Court of Claims Act 11 (b).
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."
Recognizing that "it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion" (Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]), claimant's application to file a late claim is denied.
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, 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."
The proposed claim alleges that:
"This claim is for negligence of the State of New York Department of Corrections and Community Supervision (hereinafter Doccs) failure to exercise due diligence in securing claimant and producing him at DOCCS, instead DOCCS allowed claimant to remain at liberty on parole believing his sentence to be completed. After five months on parole, defendant detained claimant, thereby causing claimant injury, loss of work, and loss of property."
The essence of claimant's proposed negligence cause of action is succinctly stated at paragraph 13 of the proposed claim as follows:
"Claimant brings this claim because it is well established that the inaction by respondent to extradite claimant to serve his New York sentence upon completion of his New Jersey sentence was 'grossly negligent' . . . and to allow claimant to remain free in society rebuilding his family and life, making significant progress toward rehabilitation, thus living in accordance with the law, while reporting to his parole, only to snatch it away was 'affirmatively wrong.'"
The proposed claim alleges that claimant was damaged, among other things, by "[l]oss of earnings . . . [l]oss of personal property, including a living room and bed room set . . [l]oss of a security deposit and two months advanced rent . . . and [p]ain and suffering."
In McLean v City of New York (12 NY3d 194, 203 [2009]), the court reminded that, in considering negligence claims:
"Government action, if discretionary, may not be a basis for liability, while ministerial actions may be, but only if they violate a special duty owed to the plaintiff, apart from any duty to the public in general."
The claim fails to state a negligence cause of action. Extradition, and the timing thereof, and incarceration pursuant thereto clearly constitute discretionary governmental action. Beyond that, claimant offers no specific non-conclusory factual allegations, nor any cogent legal argument, sufficient to show that defendant either owed, or breached, a legal duty to claimant to timely extradite and incarcerate him in New York upon completion of his New Jersey sentence, nor has he demonstrated that breach of any such duty proximately caused the damages set forth in the proposed claim.
The proposed claim lacks the appearance of merit and the application is denied.
July 2, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Motion For Permission To File a Late Claim, filed April 13, 2015, and attached exhibits, including verified proposed claim; 2. Affirmation of Douglas R. Kemp, dated May 26, 2015; 3. Reply Affirmation of Manuel Quezada, dated June 4, 2015, and attached exhibits.