Opinion
# 2020-054-041 Claim No. NONE Motion No. M-95992
12-08-2020
SAMUEL RODRIGUEZ v. NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION
SAMUEL RODRIGUEZ Pro Se HON. LETITIA JAMES Attorney General for the State of New York By: Douglas R. Kemp, Assistant Attorney General
Synopsis
Late claim application denied; no proposed claim; court cannot speculate as to allegations; proposed claim did not meet pleading requirements of Court of Claims Act 11 (b); no appearance of merit; no remedy available to serve a late notice of intention.
Case information
| UID: | 2020-054-041 |
| Claimant(s): | SAMUEL RODRIGUEZ |
| Claimant short name: | RODRIGUEZ |
| Footnote (claimant name) : | |
| Defendant(s): | NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-95992 |
| Cross-motion number(s): | |
| Judge: | WALTER RIVERA |
| Claimant's attorney: | SAMUEL RODRIGUEZ Pro Se |
| Defendant's attorney: | HON. LETITIA JAMES Attorney General for the State of New York By: Douglas R. Kemp, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 8, 2020 |
| City: | White Plains |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
The following papers numbered 1-2 were read and considered by the Court on movant's late claim application:
"Notice of Motion for Leave to File Late Notice of Claim", Notice of Intent to File Claim, Notice of Motion, Movant's "Affidavit in Support of Motion to File a Notice of Intention File a Claim" and Exhibits.....................................................................1
Attorney's Affirmation in Opposition and Exhibit...................................................2
Movant submits, inter alia, a "Notice of Motion for Leave To File Late Notice of Claim," a "Notice of Motion" which seeks permission to file "a late notice of intent to file a claim" pursuant to Court of Claims Act § 10 (6), and a proposed "Notice of Intent To File Claim".
The State opposes the motion on numerous grounds, including that the application should be summarily denied because Court of Claims Act § 10 (6) does not afford movant the relief sought in his Notice of Motion. Specifically, Court of Claims Act § 10 (6) permits a movant to seek permission to file a late "claim," not a late "notice of intent to file a claim."
The Court has considered the State's arguments. The Court is also mindful that movant is proceeding pro se. Accordingly, upon a liberal reading of the totality of movant's papers, the Court finds that movant's papers indicate that he is seeking leave to file a late claim in the same form as the proposed "Notice of Intent to File Claim." Notably, movant's "Notice of Motion For Leave To File Late Notice of Claim" states that movant is seeking leave "pursuant to Section 10 (6) of the Court of Claims Act, granting ...permission to file a late Claim...". Additionally, the proposed "Notice of Intent to File Claim," while not denominated a proposed claim, is included with movant's papers. Accordingly, the Court considers movant's application as seeking late claim relief pursuant to Court of Claims Act § 10 (6) and deems movant's proposed "Notice of Intent to File Claim" as movant's proposed claim.
The proposed claim sets forth the following facts. On August 16, 2019, during movant's incarceration at Greene Correctional Facility, a hot pot was "knocked over and caused 2nd degree burn to [movant's] right foot" (Notice of Intent to File Claim/Proposed Claim). Prior to the accident, an unnamed corrections officer instructed an unnamed inmate to move the hot pot to the cooking station table where the microwave oven was situated because the outlet used for the hot had stopped working. According to the proposed claim, as movant prepared food at the cooking station table, the hot pot fell because the table "only has enough room for the microwave oven and preparing food...[and] the microwave oven table is not built to hold a large coffee pot and a microwave oven" (Notice of Intent to File Claim/proposed claim).
The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).
The Court has considered all of the factors. While no single factor is determinative, it would be futile to grant a late claim application where the proposed claim is of questionable merit or would be subject to dismissal (see Matter of Barnes v State of New York, 158 AD3d 961 [3d Dept 2018]; Ortiz v State of New York, 78 AD3d 1314 [3d Dept 2010]; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
The State argues that even if the Court deems movant's "Notice of Intent to File Claim" as a proposed claim, the application for late claim relief still warrants denial because the proposed claim would be subject to dismissal for failure to meet the pleading requirements of Court of Claims Act § 11 (b) as to the particularization of the nature of the cause of action alleged and the State's conduct as related thereto. Specifically, the State argues that the proposed claim fails to allege what caused the hot pot to fall off the table. Thus, from the facts alleged, the State argues that it is possible that either movant or another inmate knocked over the hot pot and that there are insufficient facts alleged to form a basis for an allegation of negligence by the State or to support any inference of negligence attributable to the State. The Court finds that the State's arguments, that the proposed claim would be subject to dismissal for failure to meet the pleading requirements of Court of Claims Act § 11 (b) due to movant's failure to particularize his allegations of negligence, are compelling and relevant to the Court's assessment of whether movant has established an appearance of merit of his proposed claim.
Unlike a party who has timely filed a claim, a party seeking to file a late claim has the greater burden of establishing an appearance of merit of the proposed claim (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). In this regard, movant submits his own affidavit and the affidavit of Carlos Vargas. Movant's affidavit refers to photographs of his injuries, medical reports, an initial investigation report, an incident report and "numerous reports" generated as a result of the injuries that movant sustained in the accident (Movant's Affidavit, ¶¶ 3-4). Movant's affidavit also refers to "several grievances" that he filed due to an allegation of a lack of medical care regarding his foot (id. at 5). Movant, however, does not submit copies of any of the supporting documents, reports, grievances or photographs to which he refers in his affidavit.
The affidavit of Carlos Vargas, sworn to on December 31, 2019, states that he was the inmate who moved the hot pot on the date of the incident (Vargas Affidavit). Vargas explained that he was instructed by an unnamed "tour correction officer in housing unit I-1" to move the large "hot pot" to the food preparation table where the microwave oven was situated because the outlet at the hot pot's original location was not working. Vargas also stated in his affidavit that two of the hot pot's legs had been broken off and that "we used pieces from the scrabble game to hold the hot pot steady" (Vargas Affidavit). Vargas was at the hot pot making oatmeal when the accident occurred. As Vargas opened the door to the microwave oven, he "observed" movant screaming in pain "as the hot pot had tipped over" at the food preparation table (id.). Vargas escorted movant to the officers' station to report the injury.
First, the Court notes that movant's affidavit is self serving. Second, the Court notes that while movant's affidavit refers to photographs of his injuries, medical reports, an initial investigation report, an incident report, "numerous reports" generated as a result of the injuries that movant sustained in the accident and "several grievances" filed by movant due to the lack of medical care regarding his foot, movant fails to submit copies of any of the documents to which his affidavit refers (Movant's Affidavit, ¶¶ 3-5). Third, even if the submitted affidavits were corroborated by the independent documentary evidence to which movant refers, the affidavits do not set forth sufficient facts to support a finding of an appearance of merit of a negligence claim against the State. Fourth, as noted above, the proposed claim fails to particularize the alleged negligent conduct attributable to the State as a proximate cause of movant's accident and it is not within the province of the Court to engage in speculation beyond the allegations of the proposed claim. Thus, the Court finds that movant has failed to establish an appearance of merit of his proposed claim and that it would be futile to grant his late claim application because his proposed claim would be subject to dismissal (see Ortiz v State of New York, 78 AD3d 1314 [3d Dept 2010] [it would be futile to grant a late claim application where the proposed claim is of questionable merit or would be subject to dismissal]; Klingler v State of New York, 213 AD2d 378 [2d Dept 1995] [movant's unsupported opinion does not suffice to establish merit of the proposed claim]; Witko v State of New York, 212 AD2d 889, 891 [3d Dept 1995] ["(a) general allegation of negligence on the part of the State is insufficient to establish a meritorious cause of action"]).
Accordingly, movant's late claim application is DENIED.
December 8, 2020
White Plains, New York
WALTER RIVERA
Judge of the Court of Claims