Opinion
# 2012-049-013 Motion No. M-80976
03-20-2012
ELVIR v. THE STATE OF NEW YORK
Synopsis
Case information
UID: 2012-049-013 Claimant(s): JASON ELVIR Claimant short name: ELVIR 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-80976 Cross-motion number(s): Judge: David A. Weinstein Benno & Associates P.C. Claimant's attorney: By: Ameer Benno, Esq. Eric T. Schneiderman, NYS Attorney General Defendant's attorney: By: Cheryl M. Rameau, Assistant Attorney General Third-party defendant's attorney: Signature date: March 20, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant Jason Elvir moves this Court for permission to file a late claim pursuant to Court of Claims Act § 10(6).In the proposed claim, Elvir alleges that he was assaulted by a New York State Correction Officer on February 17, 2011, when claimant was an inmate confined to Queensboro Correctional Facility ("Queensboro") (Aff. in Supp. Ex. A, Proposed Claim).
Counsel for claimant states that this motion for permission to file a late claim was made "in an abundance of caution [because] the proposed Claim in fact is not untimely" (Reply ¶ 4). This contention is apparently based on counsel's mistaken belief that since claimant was confined to State prison at the time of the assault, he was under a legal disability, and was thus not subject to the statutory 90-day period set forth in Court of Claims Act § 10(3) and (3-a), and that he was instead entitled to the tolling provision of Court of Claims Act § 10(5) (id.). That assertion is based on an outdated understanding of the law. As articulated by the Third Department in Hall v State of New York (85 AD2d 835, 836 [3d Dept 1981]):
"Effective September 10, 1973, subdivision 2 of section 79 of the Civil Rights Law was amended to provide that '[a] sentence of imprisonment in a state correctional institution * * * shall not be deemed to suspend the right or capacity of any person so sentenced to commence and prosecute an action or proceeding in any court within this state'. CPLR 208 was also amended to eliminate imprisonment as a ground for tolling the Statute of Limitations (citations omitted)."
Specifically, the proposed claim alleges as follows: At approximately 7:30 a.m. on February 17, 2011, while Elvir was at breakfast in the mess hall, a correction officer exchanged words with another inmate sitting next to claimant, at which time claimant volunteered that the officer should just write that inmate a ticket. At the conclusion of breakfast, as the inmates were filing out of the mess hall, a group of five or six correction officers ordered Elvir to step out of the line, and claimant complied. Once all the other inmates had exited the mess hall, the correction officers locked the doors and the officer who Elvir had earlier advised to write a ticket told him that he did not like the "shit he was talking" and then struck claimant in the face with a closed fist, breaking his jaw (Proposed Claim ¶ 19). Elvir was examined by the medical staff at the facility and then was transported to Harlem Hospital to receive medical treatment. The proposed claim alleges five distinct causes of action: (1) assault; (2) battery; (3) violation of the New York State Constitution Article I §§ 8 and 9; (4) violation of the New York State Constitution Article I § 5; and (5) negligent hiring, training, supervision and retention.
This application was filed within the relevant statute of limitations, so that the Court has jurisdiction to grant relief under section 10(6). In determining whether such relief is appropriate, the Court must consider the factors listed in the statute (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). Those factors are whether: the delay in filing the claim was excusable; defendant had notice of the essential facts constituting the claim; defendant had an opportunity to investigate; defendant was substantially prejudiced; the claim appears to be meritorious; and the claimant has any other available remedy. These factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling (id.).
With respect to the existence of a valid excuse for the failure to timely serve and file a claim, claimant states that upon his release from prison on March 25, 2011, the pursuit of litigation was not his primary concern. Rather, he was focused on medical treatment, re-entry into the community, and finding gainful employment and living arrangements (Aff. in Supp. ¶ 31). Defendant argues that claimant has proffered no reason why he "could not have picked up a telephone at any time during the year since the incident" (Aff. in Opp. ¶ 5). In any case, the proffered excuse is not adequate for purposes of section 10(6) (see Clark v Roswell Park Cancer Inst. Corp., 31 Misc 3d 578, 583 [Ct Cl 2010] [excuse that claimant "needed to regain strength and weight for a future surgery," without supporting medical records, insufficient under section 10(6)]).
Whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are closely related and will be considered together (see Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). In this case, an Unusual Incident Report was generated at the facility, which documents that Elvir complained of the assault and described the incident (Aff. in Supp. Ex C). In addition, the report states that staff memoranda and reports were obtained and an inmate injury report was filed (see Espinal v State of New York, 159 Misc 2d 1051, 1057 [Ct Cl 1993] ["the occurrence of an assault within a prison, particularly one which results in serious injury, also gives notice of the injury and both opportunity and motivation for the State to investigate the underlying facts"]). Defendant makes no argument as to notice, opportunity and prejudice, and, I find that these three factors weigh in claimant's favor.
The standard to be applied when weighing the apparent merit of a proposed claim is articulated in Matter of Santana v New York State Thruway Auth. (92 Misc 2d 1 [Ct Cl 1977]). To appear meritorious, a claim "must not be patently groundless, frivolous, or legally defective," and the record as a whole including the proposed claim and any affidavits or exhibits must give "reasonable cause to believe that a valid cause of action exists" (Id. at 11).
In addition to the proposed claim, claimant has submitted portions of his Harlem Hospital medical records, which indicate that on the day of the incident, Elvir presented with a "nondisplaced fracture extending through the angle of the left hemimandible and the tooth socket . . ." (Aff. in Supp. Ex B); a redacted copy of the State of New York Department of Correctional Services(2) Unusual Incident Report that indicates that Elvir claimed that an Officer Bradley punched him on the left side of his face in the jaw (Aff. in Supp. Ex C); and Elvir's affidavit in support of the motion (Aff. in Supp. Ex D).
For its part, defendant presents separate challenges to the appearance of merit as to each of claimant's causes of action. With respect to the causes of action for assault and battery, defendant contends that various portions of the medical records relating to claimant's injury and a redacted copy of the State of New York Department of Correctional Services Unusual Incident Report call into question claimant's account of what occurred. For example, defendant notes that Department of Corrections and Community Supervision ("DOCCS") staff personnel who were interviewed reported that they witnessed no altercation or incident, and that Elvir alleged the assailant was an Officer Bradley, but that no one with that name was employed at Queensboro at the time. Defendant also argues that the statement claimant gave to Harlem Hospital personnel that he was injured as a result of being "involved in a physical altercation" contradicts his version of events.
That defendant raises "issues of fact as to the merits of the claim," however, does not vitiate the appearance of merit under section 10(6) (Jomarron v State of New York, 23 AD3d 527, 527 [2d Dept 2005]; see also Marcus v State of New York, 172 AD2d 724, 725 [2d Dept 1991] [finding that "although a sharp but undeveloped factual issue exists . . . there appears to be merit to the claim within the meaning of Court of Claims Act § 10 (6)"]). Contrary to defendant's argument, to establish an appearance of merit, claimant is not be required "to definitively establish the merits of his claim, or overcome all legal objections thereto, before the court will permit him to file" (Matter of Santana, 92 Misc 2d at 12). Moreover, as a general rule the "[f]acts stated in a motion for leave to file a late claim . . . are deemed true for purpose of [the] motion, when not denied or contradicted in opposing affidavits" (Sessa v State of New York, 88 Misc 2d 454, 458 [1976], affd 63 AD2d 334 [1978], affd 47 NY2d 476 [1979]). Here, claimant has submitted an affidavit in support by claimant, in which he swears to the veracity of the facts contained in his attorney's affirmation. In opposition, defendant has not submitted an affidavit from a person with knowledge of the relevant facts and circumstances, but instead relies solely on the affirmation of counsel who is without personal knowledge of the events that took place on February 17, 2011.
With respect to the cause of action premised on negligent hiring, training, supervision and retention, defendant contends, inter alia, that the movant has failed to "submit any prior incidents involving the subject officer(s) establishing that the State knew of its employee's violent propensities" (Aff. in Opp. ¶ 10). Indeed, claimant sets forth no facts to substantiate this claim, and states only the following in his proposed verified claim: "the aforesaid conduct and actions . . . were the result of the negligence/gross negligence of defendant in its hiring, supervision, training, monitoring, auditing, disciplining, and retention of said NYS DOCCS Correction Officers" (Proposed Claim ¶ 63). Such conclusory and unsupported allegations do not give rise to an appearance of merit (see Langner v State of New York, 65 AD3d 780, 783 [3d Dept 2009] [claimants failed to demonstrate potential merit where they did not "proffer[] any evidence" in support of essential element of their claim, and presented only "conclusory allegations"]; Edens v State of New York, 259 AD2d 729, 730 [2d Dept 1999] [claim regarding assault on inmate does not appear meritorious when "claimant did not specify how the State failed to provide inmates with reasonable protection"]; Goldstein v State of New York, 75 AD2d 614, 614 [2d Dept 1980] ["vague and general allegations of negligence in the proposed claim do not set forth a meritorious claim"]; see also Sudler v State of New York, UID No. 2009-038-546, Claim No. None, Motion No. M-76072, DeBow, J. [June 3, 2009] [motion to file late claim denied as to conclusory negligent hiring cause of action, which lacked appearance of merit]). For that reason, I need not address defendant's other contentions regarding this claim: that it required an expert affidavit to establish merit, and that hiring, training, supervision and retention decisions are discretionary governmental functions, not actionable under the facts of this case.
As to the alleged State constitutional violations, a remedy for such is available in the Court of Claims only in a limited number of circumstances and when no other "avenue of redress" is available to claimant (see Martinez v City of Schenectady, 97 NY2d 78, 83 [2001]). Here, there is an adequate remedy in common law tort for damages as contained in the proposed claim, and therefore the State constitutional actions are not meritorious (see id.; Waxter v State of New York, 33 AD3d 1180 [3d Dept 2006]).
In sum, only Elvir's first and second causes of action have the appearance of merit.
Finally, as to an alternate remedy, defendant does not oppose the motion on this ground. Claimant, however, acknowledges that he intends to bring a federal civil rights action under 42 U.S.C. § 1983 (Aff. in Support ¶ 45). Therefore, this factor weighs against claimant (see Lee v State of New York, UID No. 2009-015-218, Claim No. None, Motion No. M-76890, Collins, J. [Oct. 5, 2009] [in motion to file late claim for assault by correction officer, availability of alternative remedy of section 1983 action weighed against movant]; Sanchez v State of New York, UID No. 2002-001-034, Claim No. None, Motion No. M-64552, Read, J. [Oct. 3, 2002] [pending action in federal court arising out of same allegations meant movant had an alternative remedy, weighing against the section 10(6) relief]).
In light of the foregoing, the balance of the statutory factors weighs in favor of the claimant as to those claims where there is an appearance of merit - that is, the first and second claims for assault and battery. The absence of an appearance of merit, however, tips the scales against claimant's third, fourth and fifth claims, and his motion is denied as to those causes of action (see Matter of Perez v State of New York, 293 AD2d 918, 919 [3d Dept 2002] [upholding denial of application to file late claim "when the excuse offered for the delay is inadequate and the proposed claim is of questionable merit"]).
Accordingly, having reviewed the submissions and having considered all of the factors enumerated in the Court of Claims Act § 10(6), IT IS ORDERED that motion no. M-80976 be GRANTED IN PART, claimant shall serve and file a properly verified claim in the form of the proposed claim annexed as exhibit A to his moving papers, entitling it Claim, and omitting the third, fourth and fifth causes of action thereof. In serving and filing the claim, claimant shall comply with all of the requirements of Court of the Claims Act and the Uniform Rules for the Court of Claims, including the payment of a filing fee in accordance with Court of Claims Act § 11-a.
March 20, 2012
Albany, New York
David A. Weinstein
Judge of the Court of Claims
Papers Considered:
1. Clamant's Notice of Motion and Affirmation in Support of Claimant's Motion for Permission to File a Late Claim, and annexed Exhibits.
2. Defendant's Affirmation of Opposition.
3. Claimant's Affirmation in Reply, and annexed Exhibit.