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White v. State

New York State Court of Claims
Jan 2, 2015
# 2015-038-501 (N.Y. Ct. Cl. Jan. 2, 2015)

Opinion

# 2015-038-501 Claim No. None Motion No. M-85356

01-02-2015

JOHN WHITE v. STATE OF NEW YORK

John White, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Jessica Hall, Assistant Attorney General


Synopsis

Motion for late claim relief denied. Proposed claim lacks merit within the meaning of Court of Claims Act § 10 (6) because it does not comply with the substantive pleading requirements of Court of Claims Act § 11 (b) and is therefore jurisdictionally defective. Weight of all factors on late claim motion results in denial of motion.

Case information

UID:

2015-038-501

Claimant(s):

JOHN WHITE

Claimant short name:

WHITE

Footnote (claimant name) :

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-85356

Cross-motion number(s):

Judge:

W. BROOKS DeBOW

Claimant's attorney:

John White, Pro se

Defendant's attorney:

ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Jessica Hall, Assistant Attorney General

Third-party defendant's attorney:

Signature date:

January 2, 2015

City:

Albany

Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant, an individual incarcerated in a State correctional facility, moves pursuant to Court of Claims Act § 10 (6) for permission to file and serve a late claim alleging various torts occurring in November and December 2013. Defendant opposes the motion.

In a somewhat rambling and obtuse manner, the proposed claim alleges misconduct by State corrections officials in late November and mid-December 2013. First, the proposed claim alleges that on November 27, 2013, claimant was verbally harassed and threatened by Correction Officer (CO) Gokey, that CO Gokey's conduct was witnessed and ignored by Julie Hungerford, who was apparently notarizing some papers for claimant, and that Gokey and Hungerford violated claimant's "institutional rights" (see Proposed claim, p.4). The proposed claim further alleges that claimant was verbally harassed and threatened by CO Dishaw on December 11, 2013, and that Hungerford again witnessed and ignored the alleged threats. The proposed claim also alleges that during this encounter, CO Dishaw caused physical injury to claimant's head (see Proposed Claim, p. 3), that CO Dishaw denied his request for medical treatment, and that no investigation was done regarding the incident. The proposed claim further alleges that RN Lordi provided claimant with an injury form to fill out during sick call on December 12, 2013, but that he did not receive any medical treatment for his injuries. The proposed claim asserts that CO Dishaw and Hungerford violated claimant's "institutional rights" and that he is seeking compensation for assault, death threats, harassment, retaliation and denial of medical aid (id. at p.5) and for defendant's failure to supervise, train or sanction RN Lordi.

When deciding a motion for late claim relief, this Court must 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" (Court of Claims Act § 10 [6]). The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]), and the weight accorded the various factors is a matter within the discretion of the Court.

Defendant initially argues that the granting of late claim relief is unnecessary with regard to the alleged incident on November 27, 2013 because claim number 124656, which is pending before the Court, includes allegations that are similar to those in the proposed claim. In support of this argument, defendant submits a copy of what it asserts is claim number 124656, a document that contains allegations that are similar in substance to the November 27, 2013 allegations in the proposed claim (Hall Affirmation, Exhibit A), but which is not a copy of claim number 12465 that has been filed with the Court. The filed claim does not contain allegations regarding the incident on November 27, 2013 that are contained in the proposed claim (see Claim No. 124656, filed July 10, 2014). Further, upon review of the several pending claims that have been filed by claimant after November 27, 2013, none contain the November 27, 2013 allegations (see Claim No. 124535, filed June 17, 2014; Claim No. 124872, filed August 20, 2014; Claim No. 125091, filed October 7, 2014; Claim No. 125219, filed November 5, 2014; Claim No. 125360, filed December 8, 2014). Thus, claimant's motion for late claim relief will not be denied on the ground that it is unnecessary with respect to the November 27, 2013 incident (compare Blackbird v New York State and New York State Office of Mental Retardation and Dev. Disabilities, UID No. 2012-038-555 [Ct Cl, DeBow, J., July 17, 2012]).

The appearance of merit to a proposed claim is perhaps the most significant factor for the Court to consider because Court of Claims Act § 10 (6) reflects a legislative determination that the Court of Claims should permit a potential litigant to have his or her day in court (see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]), yet a litigant should not be subjected to the futility of pursuing a meritless claim (see Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In general, to establish the merit of the proposed late claim, claimant need not demonstrate a likelihood that he will prevail on his claim, but the proposed claim may not be legally defective (see Matter of Santana v New York State Thruway Auth., at 11).

Defendant argues that the proposed claim is jurisdictionally defective and therefore lacking merit within the meaning of Court of Claims Act § 10 (6) because it does not "state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed" as required by Court of Claims Act § 11 (b). Although the proposed claim alleges that certain tortious conduct arose on dates certain, it does not state the "time when" such acts allegedly occurred. Further, the proposed claim makes no express reference to the place where the alleged tortious conduct occurred. While references in the proposed claim to certain Upstate CF officials in regard to their alleged failure to supervise, train and sanction RN Lordi may permit an inference to be drawn that some of the alleged tortious actions took place within that facility, "defendant is not required to ferret out or assemble information that section 11 (b) obligates the claimant to allege" (Morra v State of New York, 107 AD3d 1115, 1115-1116 [3d Dept 2013] [internal quotations and citations omitted]; (see Lepkowski v State of New York, at 207 quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). Thus, the proposed claim does not satisfy the jurisdictional pleading requirements of Court of Claims Act § 11 (b), and therefore, it is legally defective and thus lacking in merit within the meaning of Court of Claims Act § 10 (6).

Turning to the other factors set forth in Court of Claims Act § 10 (6), claimant's assertions that he is not a lawyer, and that he does not have access to legal counsel or an adequate law library do not constitute a justifiable excuse (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]). Nor do claimant's summary assertions that he "endured harassments & threats of violence by facility personnel to not pursue this specified claim" and that the "claim, in part, was withdrawn due to the threats continuing" (Notice of Motion, ¶ 2), without more specificity, constitute a justifiable excuse for failing to timely commence the action (see Allen v State of New York, UID No. 2011-040-058 [Ct Cl, McCarthy, J., Oct. 7, 2011]).

"Whether the State had notice of the essential facts constituting the claim and had an opportunity to investigate the circumstances underlying the claim, and 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 are closely related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). Claimant contends that defendant had notice of the essential facts of his claim "through OAGNYS staff D. Kemp Esq. assignment to claim, & were apprised of facts" (Notice of Claim, ¶ 3). Claimant further asserts that "[t]he State had further notice & suffered no prejudice in the prompt filing and & service of withdrawal papers" (id., ¶ 4). These conclusory assertions do not demonstrate how or why defendant had notice of the facts of this proposed claim, and defendant asserts that it is not aware of any grievances filed by claimant with regard to the allegations set forth in the claim, nor did it have notice in any other form of the alleged incidents. Defendant further contends that "[w]ithout some evidence or information, claimant substantially prejudices the defendant by failing to provide an opportunity to investigate the allegations as set forth in the Proposed Claim" (Hall Affirmation, ¶ 17).

The Court is unpersuaded by claimant's unexplained and unsupported assertions that defendant had notice and an opportunity to investigate the facts that are alleged in the proposed claim, and thus, these two related factors weigh against claimant's application. As for whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to defendant, the test is not whether the proposed claim provides enough information to investigate, but rather whether the delay in serving a notice of intention or the claim upon the Attorney General resulted in substantial prejudice in defending the claim. Because there was only a six and one-half month delay in between the accrual date of the December 2013 events alleged in the proposed claim and the filing of the instant motion, and because defendant makes no specific contention as to how it was prejudiced, much less substantially so, the Court is unable to discern substantial prejudice to defendant due to the late filing, and this factor weighs in favor of granting claimant's application. Finally, claimant asserts that he has "no other available remedy for the injury & suffering [he] sustained because of the State's negligence" (Notice of Claim ¶ 5). Defendant argues that "claimant is not without any recourse as he has an available remedy in another form such as Supreme or Federal Court as against named individuals" (Hall Affirmation, ¶ 18). The Correction Law provides in pertinent part that

Any claim for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties of any officer or employee of the department [of corrections and community supervision] shall be brought and maintained in the court of claims as a claim against the state (Correction Law § 24 [2]). While claimant may maintain an action seeking redress of federal constitutional rights under 42 USC § 1983 in the State Supreme Court (see Haywood v Drown, 556 US 729 [2009]) or in federal court, he has no other forum within which to bring a suit alleging negligence of State corrections officials. Thus, as to those causes of action alleging negligence, this factor weighs in claimant's favor. As to the non-negligence causes of action, this factor weighs against the application.

The Court has considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), and finds that they weigh heavily against granting the motion for late claim relief. Thus, the motion to serve and file this proposed late claim will not be granted. Accordingly, it is

ORDERED, that motion number M-85356 is DENIED.

January 2, 2015

Albany, New York

W. BROOKS DeBOW

Judge of the Court of Claims

Papers considered:

(1) Notice of Motion for Permission to File a Late Claim, sworn to by John H. White on June 25, 2014, with Proposed Claim;

(2) Affirmation in Opposition of Jessica Hall, AAG, dated August 15, 2014, with Exhibit A;

(3) Claim number 124535, filed June 17, 2014;

(4) Claim number 124656, filed July 10, 2014;

(5) Claim number 124872, filed August 20, 2014;

(6) Claim number 125091, filed October 7, 2014;

(7) Claim number 125219, filed November 5, 2014;

(8) Claim number 125360, filed December 8, 2014.


Summaries of

White v. State

New York State Court of Claims
Jan 2, 2015
# 2015-038-501 (N.Y. Ct. Cl. Jan. 2, 2015)
Case details for

White v. State

Case Details

Full title:JOHN WHITE v. STATE OF NEW YORK

Court:New York State Court of Claims

Date published: Jan 2, 2015

Citations

# 2015-038-501 (N.Y. Ct. Cl. Jan. 2, 2015)