Opinion
# 2012-039-321 Motion No. M-81385
07-18-2012
MARQUIS VENABLE v. STATE OF NEW YORK
Synopsis
Movant's motion for permission to file a late claim is denied. The statutory factors weigh against granting the motion. Movant has failed to proffer an acceptable excuse for the delay in filing the claim and has failed to show that his proposed claim has an appearance of merit. There is nothing in the proposed claim suggesting any State involvement in the alleged wrongdoing. Case information
UID: 2012-039-321 Claimant(s): MARQUIS VENABLE Claimant short name: VENABLE 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-81385 Cross-motion number(s): Judge: James H. Ferreira Claimant's attorney: Marquis Venable, pro se Hon. Eric T. Schneiderman Attorney General of the State of New York Defendant's attorney: By: Paul F. Cagino Assistant Attorney General Third-party defendant's attorney: Signature date: July 18, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
On March 28, 2012, movant, an inmate proceeding pro se, filed with the Court a notice of motion "for leave to serve late notice of claim" pursuant to General Municipal Law § 50-e (Notice of Motion). He attached the following supporting papers to the Notice of Motion: (1) a verified Affidavit in Support and (2) a verified "notice of intention to file a claim." In his notice of intention to file a claim, movant states that his claim arose on January 9, 2011 at the Albany County Jail. He alleges that, as two "CMC" inmates were being escorted back to their housing unit by a single officer, they "broke free from the officer[']s custody" and attacked movant, causing him to sustain injuries, including a fractured left index finger (Notice of Intention to File a Claim at 1). Movant states that he seeks money damages for the officer or officers' "fail[ure] to properly perform their duties" and "fail[ure] to use the degree of care, alertness and vigilance as required under the circumstances" (id. at 2). Defendant opposes the motion on the ground that "it is clear this incident does not involve the State of New York" (Affirmation in Opposition ¶ 3). Preliminarily, the Court notes that, although movant has styled this motion as one seeking "leave to serve [a] late notice of claim" pursuant to General Municipal Law § 50-e, that statute is not applicable in the Court of Claims (see Mottolese v State of New York, UID No. 2012-040-042 [Ct Cl, McCarthy, J., May 15, 2012]). However, inasmuch as it appears that movant's intention is to seek permission to file a late claim pursuant to Court of Claims Act § 10 (6) and that defendant has not suffered any prejudice by responding to the motion as if it were one to file a late claim, the Court will deem movant's application to be one made for relief under Court of Claims § 10 (6). The Court further notes that movant has not attached to this motion "the claim proposed to be filed," as required by Court of Claims Act § 10 (6). "The failure to satisfy this prerequisite is a basis, in and of itself, for denial of the motion" (Gorrell v State of New York, UID No. 2010-040-013 [Ct Cl, McCarthy, J., Mar. 22, 2010]; see Davis v State of New York, 28 AD2d 609 [1967]; Horlback v State of New York, UID No. 2010-030-513 [Ct Cl, Scuccimarra, J., Feb. 2, 2010]). However, claimant has submitted a "notice of intention to file a claim" that contains all of the information set forth in Court of Claims Act § 11 and, in the interest of judicial economy, this Court will consider movant's "notice of intention to file a claim" as his "proposed claim" for purposes of addressing this application on the merits (see Court of Claims Act §§ 10 [6]; 11 [b]; see also Morris v State of New York, UID No. 2011-010-036 [Ct Cl, Ruderman, J., Nov. 29, 2011]; compare Owens v State of New York, UID No. 2009-015-217 [Ct Cl, Collins, J. Oct. 5, 2009]).
The Court is "vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 [2004]; see Langner v State of New York, 65 AD3d 780, 782-783 [2009]), so long as the applicable statute of limitations set forth in CPLR article 2 has not expired (Court of Claims Act § 10 [6]). Here, movant appears to be seeking permission to file a claim sounding in negligence, which is subject to a three-year statute of limitations and accrued on the date of his injury (see CPLR 214 [5]; Gianakakos v Commodore Home Systems Inc., 285 AD2d 907, 908 [2001], lv denied 97 NY2d 606 [2001]). As this motion was filed on March 28, 2012, within three years of the date when movant was allegedly injured, the Court finds that it may consider the application.
In deciding whether to grant an application to file a late claim, the Court is required to 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]).
"No one factor is deemed controlling, nor is the presence or absence of any one factor dispositive" (Broncati v State of New York, 288 AD2d 172, 173 [2001]; see Matter of Smith v State of New York, 63 AD3d 1524, 1524 [2009]). The Court has broad discretion to grant or deny a late claim motion following consideration of the statutory factors (see Matter of Brown v State of New York, 52 AD3d 1136, 1136 [2008]).
The only factor addressed by movant is whether his delay in filing the claim was excusable. On this point, movant states that he is a "layman at law," that he was unable to ascertain the extent of his injury to his left index finger until he was seen by a doctor after being placed on the facility waiting list, and that he "did not have ample access to the facility law library in order to research the procedures in which to submit his claim" (Affidavit in Support ¶¶ 2-3). However, movant's professed status as a "layman at law" is not an acceptable excuse for the delay (see Matter of Robinson v State of New York, 35 AD3d 948, 950 [2006]; Matter of Lynch v State of New York, 2 AD3d 1002, 1003 [2003]). In addition, it is unclear from movant's papers when he ultimately received medical care for his injuries and when he was able to ascertain the extent of his injuries. Without more, the Court finds this proffered excuse to be inadequate. Moreover, movant has not shown that his limited access to the facility law library substantially interfered with his ability to file a timely claim (see Plate v State of New York, 92 Misc 2d 1033, 1038 [Ct Cl 1978]). Thus, this factor weighs against movant.
The Court finds that the other factors, upon balance, also weigh against movant. There is no indication in the papers before the Court that defendant had notice of the essential facts constituting the claim or the opportunity to investigate the underlying circumstances. Importantly, movant has also failed to show that his proposed claim has an appearance of merit within the meaning of Court of Claims Act § 10 (6). "To be meritorious, a claim must not be patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists" (Sands v State of New York, 49 AD3d 444 [2008] [citation omitted]; see Dippolito v State of New York, 192 Misc 2d 395, 396 [2002]). In this proposed claim, movant alleges only wrongdoing that occurred at Albany County Jail - presumably by County officials - and there is nothing in the claim suggesting any State involvement in the matter. The jurisdiction of the Court of Claims is limited, with some exceptions not relevant here, to claims for money damages against the State (see Carver v State of New York, 79 AD3d 1393, 1394 [2010], lv denied 17 NY3d 707 [2011]; see also NY Const, art VI, § 9; Court of Claims Act § 9), and the Court of Claims does not have jurisdiction over claims against County officials (see e.g. Larocco v State of New York, UID No. 2004-016-069 [Ct Cl, Marin, J., Oct. 26, 2004]). As movant's papers are devoid of any allegations of wrongdoing by the State, the Court concludes that the proposed claim lacks an appearance of merit, such that it would be futile to permit the claim to proceed (see e.g. Ortiz v State of New York, 78 AD3d 1314, 1314-1315 [2010], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011]).
Given that movant has not offered an adequate excuse for the delay and the proposed claim lacks an appearance of merit, and upon balancing all of the other factors set forth in Court of Claims Act § 10 (6), the Court concludes that late claim relief is not appropriate.
Accordingly, it is ordered that Motion No. M-81385 is denied.
July 18, 2012
Albany, New York
James H. Ferreira
Judge of the Court of Claims
Papers Considered:
1. Notice of Motion filed March 28, 2012 and supporting papers attached thereto; and
2. Affirmation in Opposition by Paul F. Cagino, AAG dated April 5, 2012.