Opinion
# 2013-040-077 Motion No. M-84070
12-06-2013
JACK VAN DE VIVER v. THE STATE OF NEW YORK
Claimant's attorney: ANDREW F. PLASSE, P.C. By: Andrew F. Plasse, Esq. Defendant's attorney: ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Glenn C. King, Esq., AAG
Synopsis
Motion to file a late claim pursuant to CCA § 10(6) granted. Prisoner assaulted by other inmates. Alleged improper supervision. Alleged State on notice Claimant would be attacked.
Case information
UID: 2013-040-077 Claimant(s): JACK VAN DE VIVER Claimant short name: VAN DE VIVER 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-84070 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY ANDREW F. PLASSE, P.C. Claimant's attorney: By: Andrew F. Plasse, Esq. ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Glenn C. King, Esq., AAG Third-party defendant's attorney: Signature date: December 6, 2013 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, the application of Movant, Jack Van De Viver, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is granted.
Attached to the affirmation of Movant's counsel, Andrew F. Plasse, Esq., is a copy of the proposed Claim (see Ex. A). The proposed Claim alleges that, on February 4, 2013, Movant was an inmate at Clinton Correctional Facility (Clinton) located in Dannemora, New York. It further asserts that, at approximately 3:35 a.m. on that date, Movant's bed was set afire while he was sleeping in it. Movant asserts that two inmates who are members of a gang set his mattress, feet and legs on fire. It is also alleged that the correction officer supervising the dorm was asleep or otherwise "AWOL" (absent without leave) from his post (Ex. A, proposed Claim, ¶ 16).
The proposed Claim also asserts that, prior to February 4, 2013, Movant prevented the murder of a correction officer at Clinton by the members of a gang. Movant was threatened by members of this gang because of his cooperation in preventing the murder. Movant asserts that Defendant was aware of the threats against him and failed to protect him.
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed Claim asserts a cause of action for negligence (CPLR § 214[5], a three-year Statute of Limitations). Movant asserts that the claim accrued on February 4, 2013. The Court concludes that, based upon the information provided in the proposed Claim, the statute of limitations had not yet expired.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movant asserts that he did not serve a Notice of Intention to File a Claim or serve and file a Claim because he was severely injured. The excuse for failing to timely file must relate to the initial 90-day period (see Bloom v State of New York, 5 AD2d 930 [3d Dept 1958]). Here, the 90-day period expired on Monday, May 6, 2013. However, Movant has submitted neither a physician's affidavit nor hospital records to establish the length of time of his alleged incapacity (Cabral v State of New York, 149 AD2d 453 [2d Dept 1989]; Goldstein v State of New York, 75 AD2d 613 [2d Dept 1980]; Rios v State of New York, 67 AD2d 744 [3d Dept 1979]). There is no indication why he could not contact counsel and serve a notice of intention to file a claim prior to expiration of the statutory period. However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., supra at 981).
The next three factors to be addressed - whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant - are interrelated and will be considered together. Defendant does not argue lack of notice, lack of opportunity to investigate, or that it will be substantially prejudiced by a delay in filing a claim (see Reply Affirmation of Glenn C. King, Esq.). These factors, therefore, weigh in Movant's favor.
The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does not have a possible alternate remedy.
The sixth, final and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
At this stage of the proceeding, it should be noted the Court generally takes as true factual allegations of Movant. Based upon the entire record, the Court finds that the proposed Claim has the appearance of merit. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant's favor. The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, supra at 1036). Movant has provided ample basis for a favorable exercise of this Court's discretion to grant him leave to file a late claim against the State as set forth above. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the Clerk of the Court his proposed Claim against the State and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing the Claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
December 6, 2013
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read on Movant's application for permission to file a late claim:
Papers Numbered
Notice of Motion, Affirmation
& Affidavit in Support
& Exhibits Attached 1
Affirmation in Opposition 2
Reply Affirmation 3