Opinion
# 2015-044-503 Claim No. None Motion No. M-85805
04-20-2015
ROBERT V. BRISCOE v. THE STATE OF NEW YORK
ROBERT V. BRISCOE, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General
Synopsis
Court grants movant's late claim motion.
Case information
| UID: | 2015-044-503 |
| Claimant(s): | ROBERT V. BRISCOE |
| Claimant short name: | BRISCOE |
| 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-85805 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | ROBERT V. BRISCOE, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 20, 2015 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, an inmate proceeding pro se, filed a document entitled "Motion For Permission To File A Late Claim" (the Document). Attached to the Document is a proposed verified claim, a Notice of Intention to File a Claim, and a "Motion In Request Of Assignment Of Counsel." Movant also has submitted a pre-printed affidavit of service - duly sworn to before a notary public on September 24, 2014 - which indicates that something was placed in a sealed envelope and mailed to, among others, Attorney General Eric T. Schneiderman at "the Capitol, Albany, N.Y. 12224." The affidavit of service is devoid of any evidence concerning the date the envelope was mailed to the State. The Document was assigned Motion No. M-85805 and was initially returnable November 26, 2014. Defendant State of New York (defendant) had not submitted any response at that time. Given the incomplete affidavit and the lack of a response, it was unclear whether the motion had been served upon the Attorney General's Office. Accordingly, the Court sua sponte adjourned the motion to allow both parties an opportunity to address the issue of service, or lack thereof.
Motion for Permission to File a Late Claim at 9.
In response, movant submitted a letter sworn to before a notary public on January 22, 2015 . Movant states that he "did in fact serve a copy of the 'entire claim' upon the Attorney General & Sullivan County Attorney" while he was in custody at Bare Hill Correctional Facility (Bare Hill). Movant further requests that the Court grant him a default judgment based upon defendant's initial failure to respond to the motion.
Movant also seeks two copies of all documents which he filed with the Court. Movant is advised to contact the Clerk's Office directly with this request. Movant should also be aware that the Clerk's Office does not provide copies of documents filed therein free of charge. The cost for copying documents filed in that office is $0.25 per page.
Defendant has also responded to the Court's inquiry. Defendant submits an affidavit of Janet Barringer, a Senior Clerk in the Attorney General's Office Claims Bureau in Albany. Barringer states that she thoroughly searched the paper and electronic files in the Claims Bureau and finds no record of a motion served by movant.
Pursuant to CPLR 2103 (b) (2), service by mail is complete upon deposit of a properly stamped and addressed letter in a depository under exclusive care and custody of the U.S. Post Office. However, in this instance defendant has submitted evidence that the motion was never received by the Attorney General's Albany Office which is sufficient to rebut the presumption that the motion papers were properly mailed (see e.g. A. & B. Service Station, Inc. v State, 50 AD2d 973 [3d Dept 1975], lv denied 39 NY2d 709 [1976]).
The Court notes that although movant indicates that Bare Hill keeps a log of all legal mail, he has not provided a copy establishing service of this motion.
Because the motion was not served upon the Attorney General's Office, defendant requests that the motion be denied. As defendant correctly notes, a party's failure to give the required notice of motion deprives the Court of jurisdiction to entertain the motion (Burstin v Public Serv. Mut. Ins. Co., 98 AD2d 928, 929 [3d Dept 1983]; see also, Welch v State of New York, 261 AD2d 537, 538 [2d Dept 1999]). However, defendant admittedly has obtained a copy of the motion papers from the Court of Claims Motion Unit and has responded to the motion. Accordingly, the Court will address the merits of the motion.
Because this motion was not received by the Attorney General's Office, movant's request for a judgment based upon defendant's alleged default in responding is denied.
A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). In his motion for permission to file a late claim, movant states that the incidents underlying the claim occurred December 28, 2011 through June 2012. In the proposed claim, movant alleges that on May 5, 2010, January 30, 2011, December 28, 2011 and May 2012 he was subjected to unlawful and illegal searches and seizures by the State Police. The statute of limitations applicable to a cause of action for a violation of the New York State Constitution (a constitutional tort) is three years (Brown v State of New York, 250 AD2d 314 [3d Dept 1998]). Accordingly, this motion filed on September 26, 2014 is timely only with respect to the incidents that allegedly took place on December 28, 2011 and in May 2012.
Movant also alleges that the Liberty Police Department was involved these searches and seizures, and further asserts that a Sullivan County Probation Officer "lied" in a pre-sentencing report. The Court of Claims is a court of limited jurisdiction and has "exclusive jurisdiction over actions for money damages against the state," based upon the acts or omissions of its agencies or employees, where the State is the real party in interest (Monreal v New York State Dept. of Health, 38 AD3d 1118, 1119 [3d Dept 2007]; NY Const., Art. VI, § 9; Court of Claims Act § 9). This Court does not have jurisdiction over the Liberty Police Department or the Sullivan County Probation Department (see e.g. Whitmore v State of New York, 55 AD2d 745, 746 [3d Dept 1976], lv denied 42 NY2d 810 [1977]). Accordingly, the motion is denied to the extent that it seeks late claim relief against these entities.
To the extent that movant may also be asserting a violation of the Federal Constitution, the Court of Claims does not have jurisdiction to consider Federal Constitutional claims, including civil rights violations brought pursuant to 42 USC § 1983 (see e.g. Brown v State of New York, 89 NY2d 172, 184-185 [1996]) and the motion is denied to the extent movant seeks to include these causes of action.
The Court now turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;
5) 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 defendant; and
6) movant has any other available remedy.
Movant argues that his delay in filing the claim is due to his lack of knowledge of the law, his indigence, and his inability to obtain counsel. Movant's ignorance of the requirements of the Court of Claims Act and his lack of access to counsel because of his incarceration or indigence are not adequate excuses for his delay in timely serving a notice of intention or timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Plate v State of New York, 92 Misc 2d 1033 [Ct Cl 1978]). Accordingly, this factor weighs against movant.
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Defendant asserts that it did not have any notice of a potential claim until it received a copy of the motion from the Court of Claims' Motion Unit. Defendant further contends that the lack of specific allegations combined with the length of time since they purportedly occurred renders it difficult, if not impossible, to investigate and prepare a defense.
In the proposed claim, movant alleges that on the various dates police officers "bribed" him into going to the police station to talk with them. He asserts that while he was at the police station, other officers would go to his residence and conduct a search, without obtaining or showing him a warrant. He specifically names State Police Officer Nancy Stack as well as Steve D'Agata, a Liberty Police Detective. While the proposed claim may be inartfully drafted, defendant now has notice of the facts of the claim and is in possession of sufficient information from which it may undertake an investigation. In the absence of evidence that defendant is unable to ascertain the whereabouts of Stack or D'Agata, the Court discerns no prejudice to defendant. The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice all weigh in movant's favor.
Proposed Claim, ¶2.
Another factor to be considered is whether movant has any other available remedy. To the extent that the conduct alleged may constitute violations of the Federal Constitution, including civil rights violations, an alternate remedy exists in the form of an action in Federal Court. Thus, this factor weighs against movant.
The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth.,
92 Misc 2d 1, 10 [Ct Cl 1977]). In order to establish a meritorious claim, a prospective claimant must demonstrate 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 (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199, 202-203 [Ct Cl 1992]).
The Court of Appeals has held that a damages action for a constitutional tort may be asserted against defendant in certain limited instances (Brown, 89 NY2d at 186-192 [1996]). However, the "narrow remedy" established in Brown is restricted to circumstances where the claimant has no other "avenue of redress" (Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]; see e.g. Bullard v State of New York, 307 AD2d 676 [3d Dept 2003] [dismissing state constitutional claim where claimants had an alternative remedy through a CPLR Article 78 proceeding]). Accordingly, where there is "an adequate remedy in an alternate forum," a constitutional tort claim for damages is both "unnecessary and inappropriate" (Shelton v New York State Liq. Auth., 61 AD3d 1145, 1150 [3d Dept 2009] [dismissing state constitutional claim where claimants had alternative remedies through both an action and a CPLR Article 78 proceeding in Supreme Court]).
In this claim, movant alleges that each time he was interviewed by a member of the State Police at the Liberty Police Station, his residence was simultaneously being searched. Movant asserts that each search violated the State Constitution because a search warrant was never produced or shown to him. Because there is no indication that movant was arrested and prosecuted based upon any evidence discovered during either of the searches, he would not have an alternative remedy in either a motion to suppress such evidence or a cause of action for false arrest or false imprisonment (Martinez, 97 NY2d at 83). The Court - deeming the facts alleged as true for purposes of this motion as it must (see Jolley v State of New York, 106 Misc 2d 550, 551-552 [Ct Cl 1980]) - finds that at this extremely early stage in the litigation, movant has established at least the initial appearance of merit (see e.g. Spearman v State of New York, UID No. 2014-015-494 [Ct Cl, Collins, J., June 3, 2014]). Accordingly, this factor also weighs in his favor.
Four of the six statutory factors, including the crucial factor of merit, weigh in favor of movant. Accordingly, movant's motion for late claim relief is granted. Movant shall file a claim containing the information required by Court of Claims Act § 11 (b), solely with respect to causes of action for a constitutional tort against only the State of New York. Movant shall file said claim and serve a copy of it upon the Attorney General within forty (40) days from the date of filing of this Decision and Order in the Office of the Clerk of the Court. The service and filing of the claim shall be pursuant to the strict requirements of the Court of Claims Act.
The Court notes that the document entitled "Motion In Request Of Assignment Of Counsel" was apparently not provided to the Attorney General's Office as that document is not included in the copy of claimant's motion attached to defendant's opposition papers. Further, defendant does not address that issue. Accordingly, this Court does not have jurisdiction to entertain the motion for assignment of counsel and it is therefore denied (Burstin, 98 AD2d at 929; see also, Welch, 261 AD2d at 538). The motion would be denied in any event as there is no constitutional or statutory authority for the assignment or compensation of counsel under these circumstances (Matter of Smiley, 36 NY2d 433, 437-438 [1975]). Further, the assignment of counsel in civil matters is a matter of judicial discretion and generally is denied except in cases involving grievous forfeiture or the loss of a fundamental right, neither of which are present in this matter (Hines v State of New York, UID No. 2005-028-534 [Ct Cl, Sise, P.J., June 21, 2005]).
Accordingly, Motion No. M-85805 is granted solely to the extent that movant may filed and serve a late claim containing constitutional tort causes of action for the incidents allegedly occurring on December 28, 2011 and in May 2012 in the manner as set forth previously herein.
April 20, 2015
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimant's motion:
1) Notice of Motion filed on September 26, 2014 and attachments.
2) Movant's letter sworn to on January 22, 2015 and attachment.
3) Affirmation of Douglas H. Squire, Assistant Attorney General, dated February 17, 2015 and attached exhibits.