Plate v. State

• Citation: 402 N.Y.S.2d 126,92 Misc.2d 1033
• Parties: Richard PLATE, Movant, v. The STATE of New York, Defendant.
• Decision Date: 09 January 1978
• Court: New York Court of Claims

Page 126

402 N.Y.S.2d 126

92 Misc.2d 1033

Richard PLATE, Movant, v. The STATE of New York, Defendant.

Court of Claims of New York.

Jan. 9, 1978.

Prisoners' Legal Services of New York, Pierce Gerety, Jr., New York City, by Lewis B. Oliver, Jr., New York City, of counsel, Judy Ratner, Law Student on the brief, for movant.

Louis J. Lefkowitz, Atty. Gen., by G. Vincent Dean, Jr., Asst. Atty. Gen., for defendant.

OPINION

GERARD M. WEISBERG, Judge.

This is an application for permission to file a late claim pursuant to subdivision 6 of section 10 of the Court of Claims Act.

The proposed claim alleges that on November 4, 1976, at approximately 10:30 P. M., Richard Plate (Movant) suffered an attack of epileptic seizures of the grand mal type, while he was a prisoner at Ossining Correctional Facility (Ossining). The seizures lasted for approximately four hours, during which time movant was thrashing against the walls and floor of his cell, causing him to sustain various injuries. The State of New York (State) is sought to be held liable on the theory that its failure to provide movant with sufficient medication precipitated his epileptic attack and that prison guards, aware of movant's helpless condition during the attack, negligently and/or intentionally failed to render any assistance to him. In particular, the claim alleges that other inmates called to the correction officers on duty to get a doctor, and that these requests were ignored.

Subdivision 3 of section 10 of the Court of Claims Act provides in substance that a claim or notice of intention to file a claim to recover damages for personal injury caused by the tort of a State officer or employee must be filed within 90 days after the claim accrues. This claim accrued on November 4, 1976. A claim or notice of intention to file a claim should therefore have been filed on or before February 2, 1977. Having failed to comply with these statutory requirements, movant would have this Court exercise its discretion in permitting a late filing pursuant to subdivision 6 of section 10 of the Court of Claims Act, which provides, in part, as follows:

"In determining whether to permit the filing of a claim pursuant to this subdivision, the court shall consider, 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 a timely claim or notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."

The instant motion, along with the proposed claim, was filed on October 31, 1977. The Court has examined the claim and finds that it satisfies the requirements of section 11 of the Court of Claims Act in that it sets forth the time and place of the occurrence, the nature of the claim, the items of damage and the total sum demanded. Additionally, movant's application was filed within one year of accrual, and is therefore timely with respect to all Statutes of Limitation pertaining to the causes of action alleged in the claim. (CPLR 214-a, 215; Court of Claims Act, § 10, subd. 6.)

The Court must weigh each factor specifically enumerated in subdivision 6 of section 10 of the Court of Claims Act, as well as any others which it deems relevant. These factors need not be found to exist conjunctively. (Sessa v. State of New York, 88 Misc.2d 454, 458, 388 N.Y.S.2d 513, 516 (Court of Claims, 1976).) The legislative purpose in amending the late filing provisions of the Court of Claims Act was to vest broader discretion in the Courts to permit late filings than previously existed, indicating a strong concern that litigants with meritorious claims be afforded their day in court. (Walach v. State of New York, 91 Misc.2d 167, 397 N.Y.S.2d 853.) The Court will discuss the individual factors enumerated in subdivision 6 of section 10 of the Court of Claims Act with these principles in mind.

The first factor is whether movant's failure to file within 90 days after accrual was excusable. Movant has proffered a number of excuses, all of which fall into two general categories: (1) those arising from the conditions of his incarceration, and (2) mental and physical disability caused by the traumatic effects of his injuries and the debilitating effects of the medication prescribed for him.

Movant's history following the epileptic seizure of November 4, 1976 was that he was taken to the intensive care unit of Phelps Memorial Hospital where he remained for seven days until November 11th. He was then admitted to the Ossining Correctional Facility Hospital for 12 days until November 23rd, after which he was returned to population at Ossining for one week (November 23rd-December 1st). Movant was then transferred to Clinton Correctional Facility for one week, during which time he was locked in his cell for 23 hours per day (December 1st-December 9th). Thereafter, movant was transferred to Great Meadow Correctional Facility, where during the first 30 days of his incarceration he was locked in his cell with no access of the law library (December 9th-January 10, 1977).

Movant alleges that during the foregoing period, and up until early March, 1977, he suffered from severe migraine headaches and was unable to think clearly owing to large doses of phenobarbitol and Dilatin administered to him, which caused him to be constantly drowsy and confused.

In early March movant temporarily regained his health and contacted an attorney. He was advised to contact Prisoners' Legal Services of New York, his present counsel, and was interviewed by that organization shortly thereafter. In later March, however, movant suffered a mental breakdown which required him to be hospitalized again for six days.

Movant's contentions, insofar as they pertain to the conditions of his incarceration, are that he was denied access to counsel and access to the law library to learn his rights for a substantial part of the 90 days.

The Attorney-General makes essentially three points: (1) that penal incarceration is not a legal disability and does not per se excuse compliance with the 90 day filing period; (2) that movant was not locked in his cell during the entire 90 day period; and (3) that no excuse is offered for the delay of approximately seven months from the time movant contacted his present counsel in March, 1977, to the filing of the instant application in October, 1977.

Sections 79 and 79-a of the Civil Rights Law, as amended by Laws 1973, chapter 687, sections 1 and 2, provide in substance that prisoners in state penal institutions have the right to sue. State prisoners are not persons under a "disability" such that they are excused from compliance with the filing requirements of the Court of Claims Act. (Court of Claims Act, § 10, subd. 5; New York Constitution, article III, § 19.) It follows from this that movant's imprisonment during the 90 days after his claim accrued does not, in and of itself, furnish a legal excuse for the delay in filing. (Kelly v. State of New York, 57 A.D.2d 320, 395 N.Y.S.2d 311.)

Nevertheless, in assessing the excusability of the delay, the Court is not precluded from considering any kind of external constraints which would tend to prevent the prisoner from exercising his right to sue to the same degree as any other citizen. The standard of excusability is the same for prisoners as for nonprisoners. Insofar as it pertains to this case, this standard encompasses movant's mental and physical ability to act for himself, and any impediments to action imposed from without. The Court recognizes that there is great diversity in the actual conditions under which persons are confined in State penal institutions. If the conditions of a prisoner's confinement interfere in any substantial way with his ability to effectuate his legal rights, the Court must take this into consideration in judging the excusability of the delay in filing.

Movant alleges that from December 1, 1976 through January 10, 1977, he was confined to his cell for 23 hours per day, during which time he did not have an opportunity to contact an attorney or to use the law library to learn his rights. This Court would regard any constraints which seriously impaired movant's right to obtain counsel, as furnishing an excuse for his delay in filing. Even though movant is chargeable with knowledge of the filing requirements and could file a claim without the aid of an attorney (Riddle v. State of New York, (Court of Claims, July 6, 1977, MORIARTY, J.)), as a practical matter, an attorney's assistance might be necessary to determine the existence and nature of liability and to aid in the preparation of the claim. Persons not incarcerated are free to seek counsel, and prisoners must be placed on an equal footing with other citizens in this regard. Movant does not however state explicitly that he was denied the use of the telephone during this period, or that he was denied the right to contact Prisoners' Legal Services of New York. It is clear that Prisoners' Legal Services of New York interviewed movant very soon after he requested their assistance in March, 1977. The record therefore does not indicate a denial of the right to counsel.

Movant's contention that he was denied access to the law library could, in a proper case, furnish a valid excuse, especially in conjunction with a denial of the right to counsel. As previously indicated, ignorance of the filing requirements of section 10 of the Court of Claims Act is not a valid excuse. (Landry v. State of New York, 1 A.D.2d 934, 149 N.Y.S.2d 514, affd., 2 N.Y.2d 927, 161 N.Y.S.2d 889, 141 N.E.2d 919; Crane v. State of New York, 29 A.D.2d 1001, 289 N.Y.S.2d 521; Modern Transfer Co. v. State of New York, 37 A.D.2d 756, 322 N.Y.S.2d 948....