Opinion
# 2020-038-544 Motion No. M-95329
07-10-2020
FRANCISCHELLI v. THE STATE OF NEW YORK
HELD & HINES, LLP By: Philip M. Hines, Esq. LETITIA JAMES, Attorney General of the State of New York By: Charles Lim, Assistant Attorney General
Synopsis
Claimant's motion for late claim relief denied. Claimant failed to demonstrate a reasonable excuse for the delay in filing the claim, the claim lacked the appearance of merit, and claimant had another remedy available to him.
Case information
| UID: | 2020-038-544 |
| Claimant(s): | JAMES FRANCISCHELLI |
| Claimant short name: | FRANCISCHELLI |
| 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-95329 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | HELD & HINES, LLP By: Philip M. Hines, Esq. |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Charles Lim, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 10, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual currently incarcerated in a State correctional facility, moves for permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6). The proposed claim alleges that claimant was wrongfully confined to the Special Housing Unit (SHU) at Greene Correctional Facility (CF) for 180 days for violating the Department of Correction and Community Supervision (DOCCS) disciplinary rule prohibiting drug use. Defendant opposes the motion, which will be denied for the reasons that follow.
The proposed claim alleges that on September 1, 2018, the State entered into a contract with Microgenics Corporation and/or Thermo Fisher Scientific (hereinafter Microgenics) pursuant to which Microgenics provided certain DOCCS facilities with urinalysis testing equipment, as well as installation, repair and maintenance, and training for DOCCS staff, for use in drug testing DOCCS inmates (see Hines Affirmation, Exhibit C [Proposed Claim], ¶¶ 14-17). The proposed claim alleges that "[b]etween September 1, 2018 and September 2019, nearly 100,000 urinalysis tests were performed by DOCCS personnel on DOCCS inmates using" the urinalysis testing equipment "at various prisons across New York State" (id. at ¶ 19), but that at an unknown point during that period, the urinalysis testing equipment began producing false positives for buprenorphine "on a widespread scale" (see id. at ¶ 20).
The proposed claim alleges that on our about February 13, 2019, "a correction officer required [claimant] to submit to a urinalysis test" (id. at ¶ 24). The proposed claim alleges that claimant voluntarily provided a urine sample, which was analyzed using the urinalysis equipment and falsely tested positive for buprenorphine (see id. at ¶¶ 24-25). The proposed claim alleges that claimant was issued a Tier III inmate misbehavior report (IMR) charging him with violating disciplinary rule 113.24 (drug use), and that he was placed in the SHU to await his disciplinary hearing (see id. at ¶¶ 26-27). The proposed claim alleges that at the disciplinary hearing on February 20, 2019, claimant was found guilty of violating disciplinary rule 113.24 based "on the false positive results yielded by" the urinalysis equipment and "to the exclusion of contrary evidence that [claimant] offered or attempted to offer" (id. at ¶ 28). The proposed claim alleges that claimant received 180 days in the SHU with a corresponding loss of packages, commissary, and telephone privileges (see id. at ¶ 30).
The proposed claim alleges that claimant administratively appealed the disciplinary determination, and that "[o]n or about September 13, 2019, after [claimant] completed his . . . sentence, [his] appeal was granted and the charges and penalties were reversed and expunged from [his] record" (id. at ¶ 32). The proposed claim alleges that claimant was informed in a September 13, 2019 memorandum from Donald Venettozzi, Director of Special Housing/Inmate Discipline, that the disciplinary determination was reversed on that date because " 'it ha[d] come to the department's attention that a cross reactivity issue may have existed regarding the buprenorphine II assay used in testing. Therefore, in the interest of fairness the hearing has been reversed and expunged' " (id. at ¶ 33; see id., Exhibit B [Venettozzi Memorandum]).
The proposed claim alleges that "[a]s a result of . . . [defendant's] defective, unreliable, and inaccurate urinalysis testing equipment and other negligence . . . , [claimant] was falsely confined to a SHU cell and lost packages, commissary, and telephone" (id. at ¶ 34). The proposed claim further alleges that claimant lost opportunities to participate in programs and work, suffered emotional injuries, and was denied parole as a result of the false positive drug test (see id. at ¶¶ 35-37). The proposed claim asserts causes of action sounding in negligence, denial of due process, and wrongful confinement (see id. at ¶¶ 38-64).
In deciding a motion for late claim relief, the Court is required to consider the following 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]). The presence or absence of any particular factor is not controlling (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]), and the weight accorded the various factors is a matter within the discretion of the Court. Although "[t]he movant need not satisfy every statutory element[,] . . . the burden rests with the movant to persuade the court to grant his or her late claim motion" (Frederick v State of New York, 23 Misc 3d 1008, 1011 [Ct Cl 2009]).
In support of claimant's motion for late claim relief, claimant's counsel argues that the delay in filing this claim was excusable because claimant was unable to retain counsel until shortly after the time to file and serve the claim or serve a notice of intention had expired "[d]ue to delay in the prison processing and distributing his mail" (Hines Affirmation, ¶ 25; see also Francischelli Petition, ¶ 19). Claimant's counsel states that because of the delays with respect to claimant's mail, he could not execute the retainer agreement until December 20, 2019, that claimant then had to wait several days to have his signature notarized, and that the executed retainer agreement was not returned to claimant's counsel's office until December 26, 2019 (see Hines Affirmation, ¶ 25). Claimant's counsel further states that his office then required several weeks "to perform good faith investigations to verify the merits of the underlying claims and have [claimant] execute the accompanying petition" (id.). Claimant's attorney argues that the "delays in the prison giving [claimant] his mail, his lack of prompt access to a Notary Public, and his inability to retain an attorney within the 90-day period" constitute reasonable excuses for failing to timely file the claim (id. at ¶ 27). Defendant does not address this factor in its opposition to the late claim motion.
Despite claimant's assertion that he was unable to retain counsel prior to the expiration of the 90-day period within which to file and serve this claim, neither his inability to retain legal counsel nor his confinement in a correctional facility constitutes acceptable excuses for the delay in filing a claim in the Court of Claims (see Simpson v State of New York, 96 AD2d 646, 646 [3d Dept 1983] ["(c)laimant's asserted inability to secure an attorney is no basis for delay in filing"]; see also Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006] [claimant's confinement in a correctional facility was not an "acceptable excuse" for failing to timely file his claim]). Moreover, allegations that an incarcerated claimant's incoming mail was being interfered with do not constitute a reasonable excuse for a delay in filing a claim where the allegations of interference are "unrelated to any purported attempt to file a timely claim" and where the alleged "interference occurred after the . . . claim should have been filed and served upon the State" (see Barnes v State of New York, 158 AD3d 961, 963 [3d Dept 2018]). Here, as discussed above, claimant alleges that he did not receive the retainer agreement until December 20, 2019 due to delays in the processing and distributing of his mail. However, claimant had ninety days from the time his claim accrued to file and serve a claim or to serve a notice of intention to file a claim on the Attorney General (see Court of Claims Act § 10 [3], [3-b]), and here, his negligence claim accrued on February 13, 2019, the date on which the allegedly negligent urinalysis testing was performed (see Hines Affirmation, Exhibit C [Proposed Claim, ¶¶ 23-25), his due process claim accrued on February 20, 2019, the date of the disciplinary hearing at which claimant was found guilty of violating DOCCS disciplinary rule 113.24 prohibiting drug use based upon the false positive drug test (see id., Exhibit B [Superintendent Hearing Disposition Rendered], Exhibit C [Proposed Claim, ¶ 28]), and his cause of action for wrongful confinement accrued on June 10, 2019, the date claimant was released from the allegedly wrongful confinement (see id., Exhibit B [Superintendent Hearinng Disposition Rendered]; see also Campos v State of New York, 139 AD3d 1276, 1277 [3d Dept 2016]). Claimant did not state when the alleged delays in the delivery of mail occurred, and in any event, it appears that any delay in claimant's receipt of the retainer agreement occurred well after his time to file and serve the claim or notice of intention had expired. Thus, the alleged interference with his facility mail does not constitute a reasonable excuse for the delay in filing the claim. Accordingly, this factor weighs against granting the late claim application.
The next three factors - whether the State had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim, and whether claimant's failure to file or serve upon the attorney general a timely claim or notice of intention resulted in substantial prejudice to the State - are closed related, and may be considered together (see Conroy v State of New York, 192 Misc 2d 71, 72 [Ct Cl 2002]; Brewer v State of New York, 176 Misc 2d 337, 342 [Ct Cl 1998]). In support of his motion, claimant argues that the State had notice of the essential facts constituting this claim because "the documentary evidence shows that DOCCS officials recognized the testing errors (false positives) and reversed and expunged the guilty verdict[] rendered at" the disciplinary hearing (Hines Affirmation, ¶ 30), and that the State investigated "the reliability of DOCCS' drug testing program and . . . false positive buprenorphine results" (id. at ¶ 31). Claimant argues that as a result, his failure to timely file and serve the claim does not substantially prejudice defendant (see id. at ¶ 32). Defendant does not address these three factors in its opposition to claimant's late claim motion, and thus they weigh in favor of granting the application.
Turning next to the appearance of merit of the proposed claim, this factor is often decisive because, although Court of Claims Act § 10 (6) reflects a legislative determination that "litigants with meritorious claims [should] be afforded their day in court" (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]; see Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]), the courts have recognized that a late claim application should not be granted where a claim is "legally deficient . . . [and] would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request" (Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In general, a party seeking to establish the merit of a proposed late claim need not demonstrate a likelihood that he or she will prevail on the claim. Rather, a proposed claim has the appearance of merit within the meaning of Court of Claims Act § 10 (6) if: (1) the proposed claim is not "patently groundless, frivolous, or legally defective," and (2) all of the evidence submitted on the motion establishes "reasonable cause to believe that a valid cause of action exists" (Matter of Santana, 92 Misc 2d at 11).
Here, the proposed claim alleges that defendant was negligent in its ownership, operation, and maintenance of the urinalysis equipment that resulted in false positive drug tests, that its drug testing protocols and procedures were negligent, and that defendant negligently trained and supervised the individuals who were performing the urinalysis testing using the urinalysis equipment, resulting in claimant's wrongful confinement based on a false positive drug test (see Hines Affirmation, Exhibit C [Proposed Claim, ¶¶ 46-54]). The proposed claim also alleges that defendant's experts violated claimant's due process rights by relying on "the preliminary analytical test result of 'positive' for buprenorphine . . . and did not subsequently utilize the more specific chemical method to confirm the analytical result" (id. at ¶ 56 [emphasis in original]) when it issued claimant the IMR for violating the facility's disciplinary rule regarding drug use, when conducting the ensuing Tier III disciplinary hearing, and when finding claimant guilty of the disciplinary violation and sentencing him, which resulted in claimant's wrongful confinement (see id. at ¶¶ 56-61). Finally, the proposed claim alleges that as a result of defendant's alleged negligence and denial of claimant's due process rights, defendant was "deliberately indifferent to and did and/or did cause . . . claimant to be subjected to false imprisonment, atypical confinement, and loss of liberty without justification" (id. at ¶ 63).
In support of his late claim motion, claimant argues that "the allegations [in the proposed claim] are not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists" (Hines Affirmation, ¶ 36). Claimant asserts that the State was negligent with respect to its use of the urinalysis equipment and in finding claimant guilty of drug use based on the false positive drug test result, and that due to the State's alleged negligence, claimant was wrongfully confined (see id. at ¶ 37). In opposition to the motion, defendant argues that the wrongful confinement cause of action lacks merit because the State is entitled to absolute immunity inasmuch as the claimant does not allege that the confinement resulted from any due process violation at the disciplinary hearing, and a violation of DOCCS's drug testing directives does not constitute a due process violation (see Lim Affirmation, ¶¶ 9-20). Defendant further argues that the cause of action for denial of due process likewise lacks merit because "mishandling a urine sample or an impropriety in the drug testing process does not constitute a due process violation" (id. at ¶ 21). Finally, defendant argues that the cause of action for negligence lacks merit because "the law is settled that a claim for negligence may not supplant the traditional tort remedy of false imprisonment" (id. at ¶ 23).
Defendant also argues that the negligence cause of action lacks merit because "a claim for negligent investigation is not actionable in New York" (Lim Affirmation, ¶ 23), and that, in any event, "[d]efendant's investigation of claimant's conduct underlying the misbehavior report is a governmental discretionary function for which defendant may not be subjected to liability for negligence" (id. at ¶ 26). However, the Court does not agree that the proposed claim asserts a cause of action sounding in negligent investigation, and it will not find that the proposed claim lacks the appearance of merit on that basis.
In reply, claimant argues that the State is not entitled to immunity with respect to the false drug test because DOCCS's drug testing of inmates is both a proprietary function inasmuch as it is typically performed by independent laboratories (see Nazryan Reply Affirmation, ¶¶ 12-15), and a ministerial function inasmuch it did not involve the exercise of discretion (see id. at ¶¶ 16-19). Claimant further argues that the State assumed a special duty to him when it drug tested him (see id. at ¶¶ 20-21). Next, claimant argues that the proposed claim states a cause of action for negligence because defendant had a duty to act reasonably in testing claimant's urine, that defendant breached that duty when its drug testing program began producing false positives and when defendant failed to ensure the accuracy of those results, and that defendant was injured as a result (see id. at ¶¶ 24-25). Claimant argues that the negligence cause of action "does not duplicate or supplant the wrongful confinement claim" because the negligence occurred prior to the denial of due process or the wrongful confinement (see id. at ¶ 27). Claimant further argues that the proposed claim states a cause of action for wrongful confinement because DOCCS failed to follow its own guidelines with respect to the drug testing and disciplinary hearing, which resulted in due process violations, and because DOCCS failed to use proper drug testing procedures and techniques (see id. at ¶¶ 30-35).
Turning first to the cause of action for wrongful confinement, it is well settled that in order to plead a cause of action for unlawful confinement, a claim must allege that defendant intentionally confined claimant, that claimant was aware of and did not consent to the confinement, and that the confinement was not privileged (see Martinez v City of Schenectady, 97 NY2d 78, 85 [2001]; Broughton v State of New York, 37 NY2d 451, 456-457 [1975], cert denied sub nom. Schanbarger v Kellogg 423 US 929 [1975]; see also Nazario v State of New York, 75 AD3d 715, 718 [3d Dept 2010], lv denied 15 NY3d 712 [2010]). The confinement of an inmate is privileged if it was accomplished in accordance with DOCCS regulations (see Lee v State of New York, 124 AD2d 305, 307 [3d Dept 1986]; Gittens v State of New York, 132 Misc 2d 399, 402 [Ct Cl 1986]), or where there has not been a violation of an inmate's right to due process (see Arteaga v State of New York, 72 NY2d 212, 221 [1988]).
In the context of the prison disciplinary process, the doctrine of absolute immunity provides that where defendant's "employees act under the authority of and in full compliance with the governing statutes and regulations (Correction Law §§ 112, 137; 7 NYCRR parts 250-254), their actions constitute discretionary conduct of a quasi-judicial nature for which the State has absolute immunity" (Arteaga , 72 NY2d at 214). Thus, "unless the [correctional] employees exceed the scope of their authority or violate the governing statutes and regulations [relating to the prison disciplinary process], the State has absolute immunity for those actions" (Holloway v State of New York, 285 AD2d 765, 765 [3d Dept 2001]). Not all violations of DOCCS rules governing the disciplinary process will result in the abrogation of the State's absolute immunity, only those that violate an inmate's right to due process (see Arteaga, 72 NY2d at 221).
The proposed claim alleges that the State's negligence in relation to the urinalysis testing of claimant's specimen and its failure to retest the specimen using a different, chemical method - which resulted in a denial of claimant's due process rights - resulted in claimant's wrongful confinement. However, as previously discussed, in the context of prison disciplinary proceedings, defendant is entitled to absolute immunity unless defendant's agents violated a governing statute or DOCCS regulation related to the disciplinary process, and here, the claim does not allege any violation of DOCCS regulations implicating claimant's due process rights. In any event, 7 NYCRR § 1020.4, the regulation that governs urinalysis drug testing of DOCCS inmates, is not one of the provisions identified by the Court of Appeals in Arteaga as implicating due process concerns related to the disciplinary hearing process. Thus, even to the extent the proposed claim could be read as asserting a violation of the regulations governing urinalysis testing of DOCCS inmates, such a violation does not implicate claimant's due process rights in connection with the disciplinary hearing, and the proposed claim fails to allege that the allegedly wrongful confinement was not privileged (see Miller v State of New York, 156 AD3d 1067, 1068 [3d Dept 2017] ["To the extent that claimant asserts that drug testing directives were violated, they do not relate to the due process concerns of the hearing and do not serve as the basis for the wrongful confinement cause of action"]; see also Ramirez v State of New York, 175 AD3d 1635, 1638 [3d Dept 2019], lv denied 35 NY3d 902 [2020] ["a wrongful confinement action cannot be based on the mishandling of a urine sample because the violation of drug testing directives does not constitute a due process violation"]; Martinez v State of New York, UID No. 2020-015-037 [Ct Cl, Collins, J., Apr. 22, 2020]; Ramos v State of New York, UID No. 2018-032-093 [Ct Cl, Hard, J., Dec. 28, 2018]). Accordingly, the proposed claim fails to state a cause of action for wrongful confinement, and the crucial factor of the appearance of merit weighs heavily against granting the late claim application with respect to this cause of action.
Turning next to the cause of action alleging a denial of due process, as discussed above, the proposed claim alleges that defendant violated claimant's due process rights by relying solely on the "preliminary analytical test result of 'positive' for buprenorphine when issuing the Tier III misbehavior report to . . . claimant," conducting the Tier III disciplinary hearing, rendering a guilty verdict, and determining claimant's punishment without first confirming that preliminary result using "the more specific chemical method to confirm the analytical result . . . , as required [by] generally accepted protocols and procedures" (Hines Affirmation, Exhibit C [Proposed Claim, ¶¶ 56-58 (emphasis in original)]). However, even assuming that a state constitutional tort sounding in the denial of due process is recognized as a matter of law, the proposed claim fails to state a cause of action for denial of due process based on defendant's alleged failure to confirm the preliminary positive test result for buprenorphine by a different testing method. The DOCCS regulations governing urinalysis drug testing of inmates provide, as relevant to this cause of action, that where a DOCCS facility has urinalysis testing equipment,
"If a positive result is obtained on the first test, the procedure followed and the results obtained shall be noted by the operator on the urinalysis procedure form. A second test shall be performed on the same sample. The results of the second test shall be noted on a second urinalysis procedure form. If a positive result is obtained from the second test, the individual performing the urinalysis testing shall cause a misbehavior report to be issued"
(7 NYCRR § 1020.4 [f] [1] [iv]). The regulations do not require that a different method of testing be used to confirm the initial urinalysis results, but merely that the specimen must be retested before an IMR can be issued. Here, the proposed claim does not allege that defendant's agents failed to comply with these regulations when testing claimant's urine sample for buprenorphine, but rather that they failed to complete a different confirmatory test not contemplated by the regulations. Moreover, even if the proposed claim could be read as alleging that claimant's sample was not re-tested using the same testing protocols, as discussed above, defendant's failure to adhere to the DOCCS drug testing regulations does not constitute a due process violation. Lastly, to the extent that the claim could be read as challenging the DOCCS testing regulations as violative of due process, the Court lacks jurisdiction to entertain such a claim (see Cass v State of New York, 58 NY2d 460, 463 [1983], rearg denied 60 NY2d 586 [1983]; Shelton v New York State Liq. Auth., 61 AD3d 1145, 1150-1151 [3d Dept 2008]). Accordingly, the claim fails to state a cause of action for denial of due process, and the crucial factor of the appearance of merit of the proposed claim weighs against granting the late claim motion with respect to this cause of action.
Finally, the cause of action sounding in negligence also lacks the appearance of merit. While claims alleging wrongful confinement resulting from the prison disciplinary process generally sound in intentional tort (see Gittens v State of New York, 132 Misc 2d 399, 407 [Ct Cl 1986]), in limited factual circumstances, claims alleging that an inmate should have been released from restrictive confinement may also sound in negligence where, for example, the claim alleges conduct that was "almost certainly unintentional," such as computation errors, or an erroneous misapplication of rules governing release (Ramirez v State of New York, 171 Misc 2d 677, 682 [Ct Cl 1997]). Here, however, the claim does not allege that claimant's confinement was unintentional, and thus does not fall within that limited category of cases that sound in negligence. Inasmuch as "a party seeking damages for an injury resulting from a wrongful [confinement] . . . is relegated to the traditional [intentional tort] remedies of [wrongful confinement]" (Higgins v City of Oneonta, 208 AD2d 1067, 1069 [3d Dept 1994], lv denied 85 NY2d 803 [1995]), the negligence claim cannot survive alongside the wrongful confinement claim (see Nazario, 75 AD3d at 718, citing Simon v State of New York, 12 AD3d 171, 171 [1st Dept 2004] [claimant was not permitted to recover under a negligence theory where claimant sought damages for wrongful confinement]; see also Lorensen v State of New York, 249 AD2d 762, 763 n 2 [3d Dept 1998], lv denied 92 NY2d 807 [1998] [negligence cause of action dismissed where claimants sought money damages for wrongful confinement]; Green v State of New York, 39 Misc 3d 1239[A], 2013 NY Slip Op 50931[U], *9 [Ct Cl 2013] ["the law is well settled that where a negligence cause of action is asserted in the same pleading, and on the same facts, as causes of action for false arrest, imprisonment, and malicious prosecution, the negligence claim must be dismissed as a negligence cause of action may not supplant traditional tort remedies"]). Accordingly, this cause of action also lacks the appearance of merit, and this factor weighs heavily against granting the late claim application.
The Court finds unpersuasive claimant's reliance on the Court of Appeals decision in Landon v Kroll Laboratory Specialists, Inc. (22 NY3d 1 [2013], rearg denied 22 NY3d 1084 [2014]) to support its argument that defendant had a duty to act reasonably in testing claimant's urine specimen for drugs (seeNazryan Reply Affirmation, ¶¶ 24-25) inasmuch as the Court of Appeals concluded in that case that a third party, private laboratory breached its duty to accurately perform urinalysis testing and not, as here, that DOCCS breached its duty to one of its inmates in the performance of urinalysis testing. The Court has been unable to identify any case law applying Landon to an inmate's claim against the State for allegedly negligent drug testing. Moreover, Landon appears particularly inapplicable here inasmuch as, as noted above, there are regulations governing how DOCCS is to perform urinalysis testing of samples produced by its inmates and here, claimant does not allege that those regulations were violated. --------
Lastly, claimant argues that he "has no other remedy against [defendant] for its negligence," and that his "claims against [defendant] sound in tort and counsel does not foresee grounds for a successful action against any third party at this time" (Hines Affirmation, ¶ 33). Defendant argues in opposition that there is an alternative remedy available to claimant in the form of "a claim against the manufacturer/supplier of the urinalysis analyzer and the assays used to perform the drug testing," and that "[a] class action seeking damages on behalf of New York State inmates who were confined as a result of false positive drug tests for buprenorphine is currently pending in the United States District Court for the Eastern District of New York" (Lim Affirmation, ¶¶ 29-30). Because claimant has available to him the remedy of a lawsuit against the manufacturer of the urinalysis equipment that produced the false positive drug test, this factor also weighs against granting the late claim motion.
Having considered and weighed all of the factors set forth in Court of Claims Act § 10 (6), the Court finds that although three of the six statutory factors weigh in favor of granting the application for late claim relief, claimant has failed to provide a reasonable excuse for the delay in filing the proposed claim and has another remedy available to him, and the crucial factor of the appearance of merit weighs heavily against granting the late claim application. Thus, the Court concludes that claimant should not be granted permission to file and serve a late claim.
Accordingly, it is
ORDERED, that claimant's motion number M-95329 is DENIED.
July 10, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Notice of Petition, dated February 10, 2020; 2. Petition of James Francischelli, sworn to February 4, 2020; 3. Affirmation of Philip M. Hines, Esq. in Support, dated February 10, 2020, with Exhibits A-D; 4. Proposed Claim, dated February 10, 2020; 5. Affirmation of Charles Lim, AAG, in Opposition to Motion for Permission to File a Late Claim, dated June 19, 2020, with Exhibits A-B; 6. Reply Affirmation of Uri Nazryan, Esq. in Further Support of Petition to File Late Claim, dated June 26, 2020, with Exhibit A.