Opinion
# 2011-010-036 Motion No. M-80518
11-29-2011
MORRIS v. "JOHN DOE," the name "JOHN DOE" being fictitious and meant to identify an individual who viciously attacked and beat the Claimant, STATE OF NEW YORK AND NEW YORK STATE DIVISION OF CORRECTIONS, NEW YORK STATE DIVISION OF PAROLE
Synopsis
Movant's late claim application denied, no appearance of merit established, no special relationship shown. Case information
UID: 2011-010-036 Claimant(s): THOMAS MORRIS Claimant short MORRIS name: Footnote (claimant name) : "JOHN DOE," the name "JOHN DOE" being fictitious and meant to Defendant(s): identify an individual who viciously attacked and beat the Claimant, STATE OF NEW YORK AND NEW YORK STATE DIVISION OF CORRECTIONS, NEW YORK STATE DIVISION OF PAROLE Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number NONE (s): Motion number M-80518 (s): Cross-motion number(s): Judge: Terry Jane Ruderman Claimant's PAMELA J. GABIGER, ESQ. attorney: HON. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General for the State of New York By: Barry Kaufman, Assistant Attorney General Third-party defendant's attorney: Signature date: November 29, 2011 City: White Plains Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers numbered 1-2 were read and considered by the Court on movant's motion for leave to serve and file a late claim:
Notice of Motion, Attorney's Supporting Affirmation, Movant's Affidavit and Exhibits.....................................................................................................................1
Affirmation in Opposition and Exhibits....................................................................2
Preliminarily, it is noted that movant seeks leave to file a late "Notice of Intention to Make a Claim;" however there is no authority for such application. Court of Claims Act §10(6) does provide for a movant to seek leave of Court to serve and file a late claim and the Court will deem claimant's application to be one made for relief under this statute. The statute further provides that "[t]he claim proposed to be filed * * * shall accompany such application." Movant's proposed Notice Of Intention To File Claim will be treated by the Court as a proposed claim with the proviso that it is asserted against the only proper party defendant, i.e., the State of New York.
The proposed claim asserts that on October 31, 2010 at approximately 7:00 p.m., movant, a homeless man, was attending a Halloween dinner at the Family Partnership Center in Poughkeepsie. When he was outside, near the Chase Bank ATM on Mill Street, he was viciously attacked. Movant later learned that his attacker was John Glusko, a felon who had recently been released onto parole from the custody of the New York State Department of Corrections and Community Supervision (DOCCS).Movant alleges that the State was negligent in allowing Glusko to be released from prison "while knowing he had a long, violent, felony criminal history" and in failing to adequately supervise him after his release (Movant's Proposed Claim, ¶5).
Movant's Attorney's Supporting Affirmation at ¶3 states that Glusko was released from State prison "that day after serving a 15 year sentence." However, defendant's Attorney Affirmation in Opposition at ¶9 indicates that DOCCS records show that Glusko was released onto parole on October 22, 2010 after serving more than three years on a sentence of two to four years on a conviction for Criminal Contempt in the First Degree, a class E felony (Defendant's Ex. 2, DOCCS Inmate Information Printout).
In evaluating whether to exercise its discretion and grant movant's late claim application, the Court must consider, among other relevant factors, the six factors set forth in the Court of Claims Act (Court of Claims Act §10[6]). Those facts include: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy.
Movant's purported excuse for his failure to timely serve and file a claim is that he had continuing medical problems, including loss of vision, which prevented him from timely commencing an action (Movant's Affidavit; Movant's Ex. D). It is noted, however, that movant had significant vision problems prior to the date of the assault and that, as of November 17, 2010, 17 days after the incident, he had appropriate vision for driving a vehicle (Movant's Ex. D). Additionally, according to movant, within 90 days of the incident he notified the New York State Crime Victimsof the attack (Movant's Affidavit, ¶14). These facts weigh against movant's argument that he was unable to timely commence an action due to a medical incapacity since he was able to notify the New York State Office of Victim Services within 90 days of the incident. Accordingly, the Court finds that movant has failed to establish a reasonable excuse for the delay (see Klingler v State of New York, 213 AD2d 378, 379 [claimant's nine-month delay in filing her claim is not adequately excused by her physician's explanation that she had suffered, inter alia, a cerebral concussion and cervical strain for an unspecified period of time after the accident]).
Apparently, movant is referring to the New York State Office of Victim Services.
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The presence or absence of any one factor, however, is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979). The Court has considered all of the factors set forth in Court of Claims Act §10(6) and finds that, most significantly, movant has failed to establish the appearance of merit of his proposed claim and this factor weighed heavily in the Court's determination of whether to grant his application (see Langner v State of New York, 65 AD3d 780 [late claim application denied even though defendant admitted no prejudice where conclusory allegations were not enough to show a meritorious cause of action]; Matter of Brown v State of New York, 6 AD3d 756 [late claim application denied where excuse was inadequate and proposed claim was of questionable merit]).
Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Here, to show the appearance of merit of his claim of negligence asserted against the State in releasing Glusko from prison and in failing to adequately supervise him on parole, movant must allege sufficient facts to show a special relationship between him and the State (see Valdez v City of New York, 18 NY3d 69). It is well established that, absent a special relationship, the State is afforded absolute immunity against any claims alleging that it was negligent in releasing a dangerous prisoner or in supervising a parolee where the parolee has inflicted serious injury upon a member of the public (see Valdez v City of New York, 18 NY3d 69, supra; Tarter v State of New York, 68 NY2d 511, 519 ["any claim based upon the negligent supervision of parolees must fail because of the complete lack of allegations of both a special duty to protect the claimants as identified individuals and the reliance on the part of the claimants on specific assurances of protection"])
Moreover, since this application was made, the Court of Appeals has emphasized that claimants have the "threshold burden" of demonstrating a special relationship (see Valdez v City of New York, 18 NY3d 69, supra). The Court of Appeals stated that, "if plaintiffs cannot overcome the threshold burden of demonstrating that defendant owed the requisite duty of care, there will be no occasion to address whether defendant can avoid liability by relying on the governmental function immunity defense" (id.; for discussion of the government immunity defense, see Eiseman v State of New York, 70 NY2d 175, ["[s]etting the conditions of release was * * * a discretionary function within the State's absolute immunity, foreclosed from judicial review [and] [t]he acts of the corrections officials and parole supervisors in monitoring [the attacker's] release involved the kinds of policy determinations which are of a discretionary or quasi-judicial nature and therefore insulated from liability"]; Tarter v State of New York, 68 NY2d 511, 515, supra ["since parole release decisions are quasi-judicial in character, the State and its employees are absolutely immune from tort actions arising from such decisions"]).
To establish a special relationship it must be shown that there was:
"(1) an assumption by the municipality, through promises or actions, or an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; (4) that party's justifiable reliance on the municpality's affirmative undertaking"
(Valdez v City of New York, 18 NY3d 69, supra, quoting Cuffy v City of New York, 69 NY2d 255, 260). In Valdez, a woman with an order of protection against her abusive ex-boyfriend received a telephone call from him threatening to kill her. The woman left her apartment and intended to go to her grandmother's house with her two children. En route to her car, she stopped at a payphone to call the Domestic Violence Unit to alert the New York City Police of the death threat she had received. According to the woman, she spoke with an Officer Torres who advised her to return to her apartment and that the police would arrest the ex-boyfriend "immediately." The woman returned to her apartment and did not later confirm whether an arrest was made. The next night, in her apartment doorway, the ex-boyfriend shot her in the face in the presence of her children. The Court of Appeals held that, due to the lack of evidence establishing a special relationship, there was no basis for the municipality's liability. Specifically, the Court found that the woman's reliance upon the officer's alleged promise to arrest was not justifiable and that this was critical to establishing a causative link between a special duty assumed by the municipality and the injury suffered.
Here, there has been no showing of an appearance of merit of the proposed claims of negligence asserted against the State regarding its parole decisions and its supervision of a parolee because movant has failed to assert any facts upon which a special relationship could be found (see Valdez v City of New York, 18 NY3d 69, supra [to pursue a negligence claim, plaintiffs were required to allege a special duty]).
Accordingly, movant's application is DENIED (see Qing Liu v City Univ. of N.Y., 262 AD2d 473; Matter of Gallagher v State of New York, 236 AD2d 400).
November 29, 2011
White Plains, New York
Terry Jane Ruderman
Judge of the Court of Claims