Barnes v. State, 524681

• Decision Date: 02 August 2018
• Docket Number: 524681
• Citation: 164 A.D.3d 977,83 N.Y.S.3d 356
• Parties: In the Matter of Anthony BARNES, Appellant, v. STATE of New York, Respondent.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 977

83 N.Y.S.3d 356

In the Matter of Anthony BARNES, Appellant,

v.STATE of New York, Respondent.

524681

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: June 5, 2018

Decided and Entered: August 2, 2018

Anthony Barnes, Marcy, appellant pro se.

Barbara D. Underwood, Attorney General, Albany (Robert M. Goldfarb, Albany, of counsel), for respondent.

Before: Garry, P.J., Egan Jr., Aarons, Rumsey and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal of an order of the Court of Claims (Hard, J.), entered October 19, 2016, which denied claimant's application pursuant to Court of Claims Act § 10(6) for permission to file a late claim.

In September 2015, claimant, a prison inmate at the Coxsackie Correctional Facility, filed a notice of intention to file a claim alleging, among other things, that his "privileged and personal mail" was tampered with in retaliation for prior unspecified grievances filed by claimant. Claimant did not take any further action on this matter until July 2016 when he filed an application for permission to file a late claim pursuant to Court of Claims Act § 10(6). In support of his application, claimant asserted, for the first time, that from February 2015 through August 24, 2015 certain correction officers violated his constitutional rights when they interfered with his receipt of privileged legal mail in retaliation for his prior filing of grievances against them. The Court of Claims denied the application because, among other reasons, claimant had an alternative legal remedy and had not demonstrated an acceptable excuse for the delay. Claimant now appeals.

We affirm. A claim or notice of intention to file a claim to recover damages caused by the intentional tortious act of an officer or employee of defendant must be filed and served within 90 days after accrual of the cause of action (see Court of Claims Act § 10[3–b] ; Campos v. State of New York, 139 A.D.3d 1276, 1277–1278, 33 N.Y.S.3d 479 [2016] ; Butler v. State of New York, 126 A.D.3d 1247, 1247, 3 N.Y.S.3d 655 [2015] ). "Where, as here, such a claim is untimely, the Court of Claims has broad discretion in determining whether to grant or deny an application for permission to file a late ... claim and its decision will not be disturbed absent a clear abuse of that discretion" ( Matter of Barnes v. State of New York, 158 A.D.3d 961, 962, 72 N.Y.S.3d 603 [2018] [internal quotation marks, brackets and citations omitted]; see Ortiz v. State of New York, 78 A.D.3d 1314, 1314, 910 N.Y.S.2d 587 [2010], affd 17 N.Y.3d 389, 929 N.Y.S.2d 552, 953 N.E.2d 790 [2011] ; Matter of Brown v. State of New York, 52 A.D.3d 1136, 1136, 860 N.Y.S.2d 677 [2008] ). "When entertaining an application for permission to file a late notice of claim, the court must consider the factors enumerated in Court of Claims Act § 10(6), and, while no single factor is deemed controlling, this Court has consistently declined to disturb the denial of a claimant's application where the proposed claim is of questionable merit and inadequate excuses are offered for the delay in filing" ( Matter of Barnes v. State of New York, 158 A.D.3d at 962, 72 N.Y.S.3d 603 [citations omitted]; see Ortiz v. State of New York, 78 A.D.3d at 1314, 910 N.Y.S.2d 587 ; Matter of Martinez v. State of New York, 62 A.D.3d 1225, 1226, 881 N.Y.S.2d 190 [2009] ; Matter of Best v. State of New York, 42 A.D.3d 699, 700, 839 N.Y.S.2d 621 [2007] ).

Upon reviewing claimant's application, we find that, beyond restating his claim, he has failed to provide an adequate excuse for the delay in filing his claim. To the extent that claimant contends that the delay is excusable because he filed a notice of claim in September 2015, that filing did not specify the time when his claim arose (see Court of Claims Act § 11[b] ), and, therefore, the deficient notice of intention did not extend the time to file a claim (see Sommer v. State of New York, 131 A.D.3d 757, 758, 14 N.Y.S.3d 813 [2015] ; Langner v. State of New York, 65 A.D.3d 780, 781–782, 883 N.Y.S.2d 667 [2009] ; Ferrugia v. State of New York, 237 A.D.2d 858, 859, 655 N.Y.S.2d 174 n. [1997] ; see also Court of Claims Act § 10[3] ). We further find, contrary to claimant's contention, that the proposed claim is without merit, as "[a] constitutional tort claim is barred when a claimant has an alternative legal remedy to protect his or her constitutional rights" ( Deleon v. State of New York, 64 A.D.3d 840, 840, 882 N.Y.S.2d 351 [2009], lv denied 13 N.Y.3d 712, 2009 WL 4250814 [2009] ; see Martinez v. City of Schenectady, 97 N.Y.2d 78, 83–84, 735 N.Y.S.2d 868, 761 N.E.2d 560 [2001] ; Blake v. State of New York, 145 A.D.3d 1336, 1337, 42 N.Y.S.3d 875 [2016], lv denied 29 N.Y.3d 908, 2017 WL 2367307 [2017] ; Bullard v. State of New York, 307 A.D.2d 676, 678–679, 763 N.Y.S.2d 371 [2003] ). The record...