Opinion
# 2019-015-194 Claim No. NONE Motion No. M-94405
10-21-2019
ESLAM HASSAN v. THE STATE OF NEW YORK
Eslam Hassan, Pro Se Honorable Letitia James, Attorney General By: Thomas J. Reilly, Esq., Assistant Attorney General
Synopsis
Pro se inmate's motion to file a late claim pursuant to Court of Claims Act § 10 (6) was denied as movant failed to demonstrate that the majority of factors required for consideration weigh in his favor.
Case information
| UID: | 2019-015-194 |
| Claimant(s): | ESLAM HASSAN |
| Claimant short name: | HASSAN |
| 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-94405 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Eslam Hassan, Pro Se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Thomas J. Reilly, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 21, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, Eslam Hassan, a pro se inmate, seeks leave to file a late claim pursuant to Court of Claims Act § 10 (6) alleging causes of action for assault and battery and violations of the New York and Federal Constitutions. Movant alleges he was assaulted by correction officers and deprived of food, water, clothing and bedding while he was confined to an observation unit at Great Meadow Correctional Facility between January 4, 2019 and April 8, 2019. He also alleges he was denied medications on several occasions during the same period.
Movant was previously granted permission to serve and file a late claim for an assault and battery that allegedly occurred on January 4, 2019. The motion was otherwise denied, however, with respect to a proposed cause of action for medical negligence and/or malpractice. In his present motion, movant now requests permission to file and serve a late claim asserting causes of action for separate assaults and batteries which allegedly occurred on January 9, 2019 and January 10, 2019, in addition to a cause of action for violations of both the New York State and Federal Constitutions.
The first issue for determination upon a late claim motion is whether the application is timely. Court of Claims Act § 10 (6) requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." The intentional torts of assault and battery are governed by a one-year statute of limitations (CPLR § 215 [3]; Hernandez v State of New York, 39 AD3d 709 [2d Dept 2007]). Consequently, the instant motion filed on August 12, 2019 is timely with respect to movant's proposed assault and battery cause of action. The proposed causes of action for violation of the New York State Constitution is also timely, having been filed within the applicable three-year statute of limitations period (CPLR 214 (5); Brown v State of New York, 250 AD2d 314, 318 [3d Dept 1998]).
Court of Claims Act § 10 (6) permits this Court, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of 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."
This Court has broad discretion in deciding a motion to permit the late filing of a claim (Matter of Barnes v State of New York, 164 AD3d 977 [3d Dept 2018]; Williams v State of New York, 137 AD3d 1579 [4th Dept 2016], appeal dismissed and lv denied 28 NY3d 958 [2016]). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009]; Edens v State of New York, 259 AD2d 729, 730 [2d Dept 1999]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Barnes v State of New York, 158 AD3d 961, 962 [3d Dept 2018]; Matter of Martinez v State of New York, 62 AD3d 1225 [3d Dept 2009]; Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]).
The excuse advanced by movant for failing to timely file and serve the claim is that
he was confined to the observation unit, without access to a pen, paper or the law library, for three months immediately following the incidents. With respect to the approximately four-month delay that subsequently ensued in seeking permission to file a late claim, movant indicates it was caused by the conduct of personnel at Great Meadow Correctional Facility who either damaged or lost all of his personal property, including his legal papers and documents. While movant's confinement to the observation unit without access to a pen, paper or the law library provides a reasonable excuse for the initial three-month delay, his excuse for the subsequent four-month delay is insufficient. Movant's contention that he was unable to proceed during this period due to the destruction of his legal papers and documents is belied by the fact that the instant application neither refers to nor is supported by any such papers or legal documents. Absent a reasonable excuse for this four-month delay, this factor does not weigh in movant's favor.
Addressing the intertwined issues of notice, opportunity to investigate and prejudice, movant contends that the State had notice and a sufficient opportunity to investigate the claim as staff in the prison dispensary were aware of the events giving rise to the claim. Aside from this conclusory statement, movant provides no documentary evidence demonstrating the State's awareness of the facts giving rise to the claim nor does he indicate he was treated in the prison infirmary for any injuries. Moreover, movant does not contend that any use of force reports were generated or that a misbehavior report was issued following the January 9th and 10th incidents. Instead, movant alleges only that he was photographed in the medical unit on January 10, 2019 after the occurrence of the second assault. However, the existence of photographs, without more, fails to demonstrate the State had notice of the facts giving rise to the claim or an opportunity to investigate the circumstances. As a result, these factors do not weigh in favor of granting late claim relief.
With respect to the required showing of merit, the merit of a claim is sufficiently established if the claimant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective, and the record as a whole provides reasonable cause to believe that a valid cause of action exists (Martinez, 62 AD3d 1225; Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). While movant alleges he was the victim of an assault and battery on January 9 and 10, 2019, unlike his prior application for the assault and battery that allegedly occurred on January 4, 2019, he provides few details and has failed to demonstrate by the required showing that a valid cause of action exists.
Movant's proposed causes of action under the New York State and Federal Constitutions lack merit as a matter of law. No cause of action lies under the New York State Constitution where a common law cause of action such as one for assault and battery is available to ensure the full realization of movant's rights (Lyles v State of New York, 2 AD3d 694, 695 [2d Dept 2003], affd 3 NY3d 396 [2004]; Martinez v City of Schenectady, 97 NY2d 78, 82-84 [2001]; Williams, 137 AD3d 1579). Nor may claims under the Federal Constitution be adjudicated in the Court of Claims (Jones v State of New York, 171 AD3d 1362 [3d Dept 2019], appeal dismissed 33 NY3d 1056 [2019]; Oppenheimer v State of New York, 152 AD3d 1006, 1008 [3d Dept 2017]).
To the extent the proposed claim could be read to include a cause of action for medical negligence or malpractice, movant failed to demonstrate the potential merit of the claim as an affidavit of merit from a physician was not provided (Decker v State of New York, 164 AD3d 650 [2d Dept 2018]; Schreck v State of New York, 81 AD2d 882 [2d Dept 1981]).
As for the final factor to be considered, it does not appear that movant has any alternative avenue of redress against the State.
Insofar as the majority of factors for consideration do not weigh in movant's favor, the motion for leave to file and serve a late claim is denied.
October 21, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of motion dated August 6, 2019;
2. Affidavit in support sworn to July 21, 2019, with attachments;
3. Affirmation in opposition dated October 8, 2019, with Exhibit A.