Opinion
# 2017-053-564 Claim No. NONE Motion No. M-90578
10-27-2017
RIGER MAYANDUENA v. THE STATE OF NEW YORK
RIGER MAYANDUENA, Pro Se HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Darren Longo, Esq. Assistant Attorney General
Synopsis
Movant's motion to reargue his prior motion for permission to late file a claim pursuant to CPLR 2221 (d) is denied. Movant only addresses the first of six statutory factors provided by Court of Claims Act 10 (6). Movant may file a subsequent motion for permission to late file a claim that includes a proposed claim with the correct accrual date, is in compliance with Court of Claims Act 11 (b), and addresses all factors set forth in Court of Claims Act 10 (6).
Case information
| UID: | 2017-053-564 |
| Claimant(s): | RIGER MAYANDUENA |
| Claimant short name: | MAYANDUENA |
| 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-90578 |
| Cross-motion number(s): | |
| Judge: | J. DAVID SAMPSON |
| Claimant's attorney: | RIGER MAYANDUENA, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General BY: Darren Longo, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | October 27, 2017 |
| City: | Buffalo |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant Riger Mayanduena moves to reargue this Court's decision and order that denied his prior motion no. M-89448 for permission to file and serve a late claim (Mayanduena v The State of New York [Ct Cl, March 21, 2017]). Defendant opposes the motion.
A motion to reargue is addressed to the sound discretion of the Court. Such a motion is "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221 [d] [2]). Movant has failed to demonstrate that the Court overlooked or misapprehended any matters of fact or misapplied existing law. Thus, insofar as movant's present motion can be construed as a motion to reargue under CPLR 2221 (d), it must be denied.
In opposing the present motion, defendant treats the motion, at least in part, as if it were a second motion for permission to late file a claim under Court of Claims Act § 10 (6). Section 10 (6) requires that a motion for late claim relief be accompanied by a proposed claim that meets all of the pleading requirements of section 11 (b) of the Court of Claims Act. Movant's initial motion for leave to late file a claim was denied as it did not include the proposed claim that must accompany such a motion.
Pursuant to section 11 (b) of the Court of Claims Act, the proposed claim that must accompany a motion for late claim relief must include "the time when and place where such claim arose, the nature of same [and] the items of damage or injuries claimed to have been sustained." The movant's original motion alleged that the incident underlying the claim occurred on April 3, 2016. In his affidavit in support of the present motion, movant alleges that the actual date of the incident underlying his claim was January 24, 2015. However, in the proposed claim accompanying the present motion, movant alleges that he sustained injuries on January 25, 2015.
Movant attaches to the present motion a portion of his ambulatory health records (movant's Exhibit A). Among these records is a progress note dated January 25, 2015, indicating that movant was seen that day in the infirmary at Marcy Correctional Facility (Marcy) for burns which occurred the day before. Underneath the date of January 25, 2015 is written the word "Error" with an arrow pointing to the date. The word "Error" is written in a different handwriting from that of the progress note. In addition, the January 25, 2015 progress note is situated in between a progress note dated January 21, 2016 and another progress note dated January 30, 2016. Based on the record before the Court, there are five possible accrual dates.
A motion for permission to file and serve a late claim must be brought "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" (Court of Claims Act § 10 [6]). A negligence action against a private citizen would have to be commenced within three years of accrual of the claim (CPLR 214) while an action based on an intentional tort must be brought within one year of accrual (CPLR 215). Based on the accrual date used, a motion to late file a negligence claim would be timely, but a motion to late file a claim based on an intentional tort may not be.
Court of Claims Act § 10 (6) grants the Court broad discretion to permit the late filing of a 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 [movant] has any other available remedy." The factors enumerated in the statute are not exhaustive and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).
In support of his motion, movant only addresses the first of the six statutory factors. Movant alleges that his failure to timely file and serve a claim was excusable as he is not a trained attorney and neither speaks nor understands English. Neither ignorance of the law nor the inability to speak or understand English constitute reasonable excuses for the delay (Matter of Robinson, 35 AD3d 948 [3d Dept 2006]; Rodrigues v State of New York, 143 AD2d 993 [2d Dept 1988]).
The next three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [Ct Cl, 1998]). Unfortunately, the proposed claim does not indicate how the incident occurred. Moreover, without a precise accrual date, the defendant would have to search each of the five possible accrual dates to determine if it had a record of any incident involving the movant. The Court of Claims Act, however, does not require the defendant "to ferret out or assemble information that section 11 (b) obligates the [movant] to allege" (Lepkowski v State of New York, 1 NY3d 201, 206 [2003]). These three factors weigh against granting late claim relief.
The most important factor to consider is merit as it would be futile to permit a claim to be filed which was subject to dismissal (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]). It is movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is a reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). Without a precise accrual date or any information in the proposed claim as to how the incident occurred, there is no way to determine if the proposed claim has merit. It would be futile to permit a proposed claim to be filed which was subject to dismissal for failure to comply with the pleading requirements of Court of Claims Act § 11 (b).
The last factor to consider is whether movant has an alternate remedy. Again, without an exact accrual date or any information as to how the incident occurred, it cannot be determined whether movant has an alternate remedy.
Based on the foregoing, movant's motion no. M-90578, insofar as it may be treated as a motion for reargument or as a motion for permission to late file a claim is denied. Movant may file a subsequent motion for permission to late file a claim that includes a proposed claim which includes the correct accrual date, is otherwise in compliance with Court of Claims Act § 11 (b), and is accompanied by an affidavit which addresses all of the statutory factors set forth in Court of Claims Act § 10 (6). Finally, any subsequent motion must be filed prior to the expiration of the applicable statute of limitations.
October 27, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims The following were read and considered by the Court: 1. Notice of Motion and affidavit of Riger Mayanduena sworn to April 19, 2017, with annexed Exhibits A-B; 2. Opposing affirmation of Assistant Attorney General Darren Longo dated July 5, 2017.