Opinion
# 2015-048-173 Claim No. None Motion No. M-85868
03-31-2015
MICHAEL TOWNSEND v. THE STATE OF NEW YORK
Michael Townsend, Pro Se HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: James Williams, Esq. Assistant Attorney General
Synopsis
The Court denied Claimant's motion, made pursuant to Court of Claims Act 10 (6), to file a late claim, finding that it lacked subject matter jurisdiction over claims against the Lewis County Sheriff's Department.
Case information
| UID: | 2015-048-173 |
| Claimant(s): | MICHAEL TOWNSEND |
| Claimant short name: | TOWNSEND |
| 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-85868 |
| Cross-motion number(s): | |
| Judge: | GLEN T. BRUENING |
| Claimant's attorney: | Michael Townsend, Pro Se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: James Williams, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 31, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
On October 17, 2014, Michael Townsend filed a motion for permission to file a late Claim, pursuant to Court of Claims Act § 10 (6), alleging negligence and seeking to recover damages for personal injuries sustained on January 25, 2014, after he was electrocuted while using a facility "Crock-Pot," while an inmate at the Lewis County Jail. The Attorney General's Office responded to the motion, asserting that it was not served with the motion papers.
The Attorney General offers the Affidavit of Janet Barringer, a Senior Clerk in the Claims Bureau of the Albany Office of the Attorney General, who, after a search of the records of the Office of the Attorney General, attests that she could find no record that the Attorney General was served with a motion in this matter (see Affidavit of Janet Barringer, sworn to on November 18, 2014). The Court need not address the service issue as it has analyzed Claimant's motion on the merits.
In an action to recover damages to property or for personal injuries, Court of Claims Act § 10 (3) requires that a Claim be filed with the Clerk of the Court and served upon the Attorney General within 90 days after the accrual of the claim unless, within that same time frame, a Notice of Intention to File a Claim (Notice of Intention) is served upon the Attorney General, in which event the Claim shall be filed and served within two years after its accrual. Failure to timely serve the Attorney General with the Notice of Intention, or to timely file and serve the Claim, divests the Court of subject matter jurisdiction (see Alston v State of New York, 97 NY2d 159, 164 [2001]; Caci v State of New York, 107 AD3d 1121, 1122 [3d Dept 2013]). However, if a claimant fails to timely file or serve the Claim, or fails to timely serve the Notice of Intention, he or she may move the Court for permission to file and serve a late Claim, so long as the applicable statute of limitations set forth in article 2 of the CPLR has not expired (see Court of Claims Act § 10 [6]). As is relevant to this action, CPLR 214 (5) requires that an action to recover damages for personal injuries be commenced within three years of the date of the injury. Accordingly, since the Claim is alleged to have accrued on January 25, 2014, Claimant's application for late Claim relief is made within the applicable statute of limitations.
In addressing the substance of Claimant's motion, the Court of Claims is vested with broad discretion to grant or deny an application that seeks permission to file a late Claim (see Langner v State of New York, 65 AD3d 780, 783 [3d Dept 2009]) after consideration of, among other 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]). However, "the presence or absence of any one factor should not be deemed controlling" (Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009] [internal quotation marks and citation omitted]).
With respect to the excusable delay factor in Court of Claims Act § 10 (6), Claimant asserts that he had no access to legal counsel or the law library during the statutory filing period because of the injuries he sustained. However, Claimant's own conclusory statement regarding his incapacitation is not an acceptable explanation for this delay (see Goldstein v State of New York, 75 AD2d 613, 614 [2d Dept 1980]). While not a bar to the application, this factor does not weigh in Claimant's favor.
The appearance of merit of the proposed Claim may arguably be the most crucial factor in section 10 (6) (see Matter of Martinez v State of New York, 62 AD3d at 1226 ). However, it does not require Claimant to definitively establish the merits of the proposed Claim. Rather, Claimant needs to establish that the proposed Claim is not "patently groundless, frivolous or legally defective, and the record as a whole must give reasonable cause to believe that a valid cause of action exists" (Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]).
This Court's subject matter jurisdiction is limited to claims against the State of New York and other entities as provided by statute (see Court of Claims Act §§ 8, 9; Morell v Balasubramanian, 70 NY2d 297, 300 [1987] [Lawsuits for money damages are permitted against "the State itself, or actions naming State agencies or officials as defendants, where the action is, in reality, one against the State - i.e., where the State is the real party in interest"). Prisoners in county jails are under the care and control of the sheriff of the county in which the jail is located. (see Correction Law § 500-c). Here, the Lewis County Jail would be the responsibility of the Lewis County Sheriff, who is a county employee and not a State officer for whom the State can be held liable (see Bardi v Warren County Sheriff's Dept., 194 AD2d 21, 23 [3d Dept 1993]; see also Public Officers Law § 2; Fuller v State of New York, 11 AD3d 365, 366 [1st Dept 2004]). The Court of Claims does not have subject matter jurisdiction of claims against the County of Lewis, its agencies or employees, and Claimant has not alleged any negligence on the part of the State of New York. Thus, the proposed Claim lacks the appearance of merit. Under these circumstances, even if the Court were to construe the remaining factors in Claimant's favor, after weighing all of the section 10 (6) factors, the Court determines that Claimant's motion must be denied.
Accordingly, Claimant's Motion No. M-85868, made pursuant to Court of Claims Act § 10 (6), is denied.
March 31, 2015
Albany, New York
GLEN T. BRUENING
Judge of the Court of Claims
The following papers were read and considered by the Court:
Notice of Motion, filed October 17, 2014, with attached proposed Claim and Affidavit of Service;
Correspondence from James Williams, Esq., dated November 21, 2014, with the Affidavit of Janet Barringer, sworn to on November 18, 2014.