Opinion
# 2015-009-018 Claim No. NONE Motion No. M-86088
09-14-2015
DAVID SIMPSON v. THE STATE OF NEW YORK
DAVID SIMPSON, PRO SE HON. ERIC T. SCHNEIDERMAN Attorney General BY: Thomas M. Trace, Esq., Senior Attorney Of Counsel.
Synopsis
Claimant's motion seeking permission to serve and file a late claim based upon an alleged inmate assault was denied, primarily on the basis that claimant failed to establish the appearance of a meritorious claim.
Case information
| UID: | 2015-009-018 |
| Claimant(s): | DAVID SIMPSON |
| Claimant short name: | SIMPSON |
| 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-86088 |
| Cross-motion number(s): | |
| Judge: | NICHOLAS V. MIDEY JR. |
| Claimant's attorney: | DAVID SIMPSON, PRO SE |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General BY: Thomas M. Trace, Esq., Senior Attorney Of Counsel. |
| Third-party defendant's attorney: | |
| Signature date: | September 14, 2015 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant has brought this motion permission to serve and file a late claim.
The following papers were considered by the Court in connection with this motion:
Notice of Motion; Affidavit in Support; Proposed "Notice of Intention to File Late Claim" 1-3
Affirmation in Opposition 4
At the outset, the Court notes that Court of Claims Act § 10 (6) provides only for the late filing of a claim, and does not authorize a Court to permit for the late filing or service of a Notice of Intention to File a Claim (Holmes v State of N.Y., Rosewell Park Cancer Inst. Corp., 5 Misc 3d 446 [Ct Cl 2004]; DeHart v State of New York, 92 Misc 2d 631 [Ct Cl 1977]). Although in this case claimant has submitted a proposed "Notice of Intention to File Late Claim", the Court will consider the application to be one for permission to serve and file a late claim.
In his proposed claim, claimant seeks damages based upon personal injuries suffered by him when he was allegedly assaulted by another inmate on June 24, 2014 at Marcy Correctional Facility (Marcy), where he was then incarcerated.
In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in Section 10 (6) of the Court of Claims Act. The factors set forth therein are: (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see Matter of Gavigan v State of New York, 176 AD2d 1117 [3d Dept 1991]).
With regard to excuse, claimant states that he was not aware of the short filing period applicable to actions commenced in the Court of Claims, and that other contributing factors in his failure to timely serve and file a claim were his incarceration, his limited ability to confer with counsel, and his lack of access to legal references. However, ignorance of the law is not an acceptable explanation for the failure to timely serve and file a claim (see Matter of Galvin v State of New York, 176 AD2d 1185 [3d Dept 1991], lv denied 79 NY2d 753 [1992]). Similarly, the mere fact that a claimant is incarcerated and conclusory allegations that he is without access to legal references also do not qualify as a reasonable explanation (Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002]). Accordingly, the Court finds that claimant has failed to present an acceptable excuse for failing to timely serve and file his claim.
The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. As set forth in his moving papers, claimant asserts that the State had notice of the essential facts of his claim since numerous employees of the State were present at the time of the incident, that reports and memoranda were prepared with respect to the incident, that an investigation was conducted by staff at Marcy following the incident, and that misbehavior reports were issued and hearings with regards to those reports were conducted. Defendant has not disputed these assertions, but contends that none of the above reports, memoranda, investigation, or hearings establish that the State had notice of "the precise claim now being asserted" (Matter of Sandlin, 294 AD2d at 724). Assuming claimant's assertions to be true, this Court finds that the investigation purportedly conducted by staff facility at Marcy, combined with any reports and memoranda prepared, certainly provided the State with notice of the essential facts constituting this claim, as well as an opportunity to investigate the circumstances surrounding the claim. Furthermore, based upon the existence of the reports, memoranda, and investigation, the Court finds that the State would not be substantially prejudiced should this motion be granted.
The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]). In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). Unlike a party who has timely filed a claim, however, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]).
As stated at the outset herein, claimant has alleged that he was assaulted by another inmate at Marcy on June 24, 2014, and that he received injuries to his forehead for which he received medical attention at a hospital outside of the facility. Although not set forth in his proposed claim, claimant alleges in his supporting affidavit to this motion that the claim is based "upon the negligence of Officer Markham in his duties [which] was the proximate cause of the injuries that I incurred." This broad and conclusory allegation of negligence, however, is unsupported by any factual detail or evidence, nor does it establish to any degree whatsoever that the State failed to exercise reasonable care to protect him from any foreseeable risk or harm (see Matter of Sandlin, 294 AD2d 723, 725). Claimant has alleged no facts with respect to foreseeability, nor any other facts that would support any inference of negligence against the State. The Court finds and concludes, therefore, that claimant has failed to establish the appearance of a meritorious claim.
It does not appear that claimant has any other viable remedy.
The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]), and none of the factors can require denial as a matter of law.
Accordingly, after a review of the papers submitted herein, and after weighing and considering all of the factors set forth under Court of Claims Act § 10 (6), and after concluding that claimant has failed to establish the appearance of a meritorious claim, it is the opinion of this Court that claimant should not be allowed to serve and file his proposed claim.
Therefore, it is
ORDERED, that motion No. M-86088 is hereby DENIED.
September 14, 2015
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims