Opinion
# 2015-016-005 Claim No. None Motion No. M-85844
03-03-2015
VICTOR H. v. THE STATE OF NEW YORK
Victor H., Pro se Eric T. Schneiderman, Attorney General By: Joseph L. Paterno, AAG
Synopsis
Case information
UID: | 2015-016-005 |
Claimant(s): | VICTOR H. |
Claimant short name: | H. |
Footnote (claimant name) : | The Caption has been amended by the Court to protect the privacy of claimant. |
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-85844 |
Cross-motion number(s): | |
Judge: | Alan C. Marin |
Claimant's attorney: | Victor H., Pro se |
Defendant's attorney: | Eric T. Schneiderman, Attorney General By: Joseph L. Paterno, AAG |
Third-party defendant's attorney: | |
Signature date: | March 3, 2015 |
City: | New York |
Comments: | |
Official citation: | |
Appellate results: | |
See also (multicaptioned case) | 2015-016-006 |
Decision
Victor H. has made separate motions for permission to file two late claims; both are opposed by the State of New York in one affirmation in opposition.
In Motion M-85845, Mr. H. states that he was assaulted by correction officers at the Rikers Island Correctional Facility, Queens County on August 26, 2014. Ordinarily, a late claim motion under section 10.6 of the Court of Claims Act is decided by evaluating the totality of the six factors set forth in the Act (all six do not have to be met): whether (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable; and (6) the claim appears to be meritorious.
However, to permit the filing of "a legally deficient claim which would be subject to immediate dismissal" would be "futile" (Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]). It is undisputed that the Rikers Island facility is under the aegis of the Department of Correction of the City of New York, and acts of its employees are to be imputed to such City.
The Court of Claims has jurisdiction covering claims only against the State of New York and a limited number of other entities specifically provided for in statute. It does not have jurisdiction over actions against New York City (see e.g. Fisher v State of New York, 10 NY2d 60 [1961]; Whitmore v State of New York, 55 AD2d 745 [3d Dept 1976], lv denied 42 NY2d 810 [1977]).
Claimant has written a letter to this Court dated November 27, 2014 seeking to "withdraw Motion # 85845 without prejudice," meaning of course that it could be brought again; defendant opposed such request. Under Prusack, such could not prevail, and accordingly, having reviewed the submissions for this application, IT IS ORDERED that motion No. M-85845 be denied.
The following were reviewed: claimant's Notice of Motion, Affidavit in Support of Motion to Late File a Claim with two unlettered/unnumbered attachments; and Defendant's Affirmation in Opposition. See also Driscoll v New York State Attorney General's Off. Litig. Unit, 69 AD3d 515 (1st Dept 2010).
Claimant in Motion M-85844 seeks to file a late claim for the actions of several named employees of the Kirby Psychiatric Center (Wards Island) in disclosing his HIV status. This facility is part of the Office of Mental Health of the State of New York, and thus, subject matter jurisdiction is not at issue.
The six factors of section 10.6 of the Act are now to be considered. Misapprehending the law, including jurisdiction (claimant states he was unaware that Kirby was a State facility) is not a valid excuse. (Matter of E.K.v State of New York, 235 AD2d 540 [2d Dept 1997], lv denied 89 NY2d 815 [1997]). The three related factors of notice, prejudice and opportunity to investigate, from Victor H.'s vantage, are at best, marginally against him inasmuch as he presents no documentation supporting the disclosure.
With respect to the appearance of merit, the standard has been enunciated in Matter of Santana v New York State Thruway Auth. 92 Misc 2d 1, 11 (CT CL 1977): "(1) [the claim] must not be groundless, frivolous, or legally defective, and (2) the Court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists." Article 27-F of the Public Health Law, section 2780 et seq, covers "HIV and AIDS Related Information." Section 2782 limits the disclosure except in authorized circumstances, and section 2785 of the Public Health Law details how and under what circumstances a court may authorize disclosure of such information.
This court concludes that Victor H. has satisfied the Santana test for merit and thus, overall, has complied with section 10.6 of the Act. Accordingly, having reviewed the submissions for this application, IT IS ORDERED that Motion M-85844 be granted and that within sixty (60) days of the filing of this Decision and Order, claimant shall serve and file his claim in compliance with sections 11 and 11-a of the Court of Claims Act.
The following were reviewed: claimant's Notice of Motion, Affidavit in Support of Motion to Late File a Claim with two unlettered/unnumbered attachments; and Defendant's Affirmation in Opposition (the same document as in footnote 1).
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March 3, 2015
New York, New York
Alan C. Marin
Judge of the Court of Claims