Quick v. State, # 2016-009-023
| Decision Date | 30 June 2016 |
| Docket Number | # 2016-009-023,Motion No. M-87634,Claim No. NONE |
| Parties | DESMOND QUICK v. THE STATE OF NEW YORK |
| Court | New York Court of Claims |
Claimant's motion for late claim relief was granted, in part, and claimant was granted permission to serve and file a claim based upon allegations of assault and battery. Claimant's request for the assignment of counsel was denied.
Case information
UID: 2016-009-023 Claimant(s): DESMOND QUICK Claimant short name: QUICK 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-87634 Cross-motion number(s): Judge: NICHOLAS V. MIDEY JR. Claimant's attorney: DESMOND QUICK, PRO SE Defendant's attorney:HON. ERIC T. SCHNEIDERMAN Attorney General of the State of New York BY: Sean B. Virkler, Esq., Assistant Attorney General, Of Counsel. Third-party defendant's attorney: Signature date: June 30, 2016 City: Syracuse Comments: Official citation: Appellate results: See also (multicaptioned case)
Claimant has brought this motion seeking permission to serve and file a late claim, and for the assignment of counsel.
The following papers were considered by the Court in connection with this motion:
Notice of Motion; Affidavit in Support; Proposed Claim; Affidavit pursuant to CPLR 1101 (f) 1-4
In his proposed claim, claimant seeks damages for personal injuries suffered by him when he was allegedly assaulted by correction officers and staff at Marcy Correctional Facility (Marcy) on November 19, 2014, where he was then incarcerated. Claimant also alleges that medical staff at Marcy failed to provide him with medical attention after this assault, and he also alleges that his rights under the New York State Constitution were violated.
Pursuant to Court of Claims Act § 10 (6), a claimant may seek late claim relief "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." This claim, essentially one for assault and battery, requires that the application for late claim relief be made within one year of accrual (see CPLR § 215). As set forth in his proposed claim, claimant's cause of action alleged on the date of the alleged assault, November 19, 2014. Claimant's motion for late claim relief was filed with the Clerk of the Court of Claims on October 26, 2015, within that one year period. Even though the original return date of this motion did not fall within the one-year limitation, the application is considered timely since it was served and filed within the limitations period (Thompson v State of New York, 258 App Div 758 [3d Dept 1939]; Johnson v State of New York, 131 Misc 2d 630 [Ct Cl 1986]; Jenkins v State of New York, 119 Misc 2d 144 [Ct Cl 1983]). Accordingly, this Court finds that claimant's application has been timely made.
In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in Section 10 (6) of the Court of Claims Act. The factors set forth therein are: (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see Matter of Gavigan v State of New York, 176 AD2d 1117 [3d Dept 1991]).
With regard to excuse, claimant states that he suffers from "Attention Deficit Hyperactive Disorder" and that it is difficult for him to remember dates and deadlines. Claimant, however, has not submitted any physician affidavit or other evidence to establish that he suffers from this disorder, and that such disorder prevented him from timely serving and filing his claim. The Court therefore finds that claimant has not presented an acceptable excuse for failing to timely serve and file his claim (Cabral v State of New York, 149 AD2d 453 [2d Dept 1989]).
The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. As set forth in his affidavit, claimant contends that the State had notice of the essential facts since numerous staff members at Marcy were involved in this incident; claimant had submitted a grievance to the Inmate Grievance Resolution Committee; claimant was also the subject of a Tier III Superintendent's Hearing; and that the entire incident was captured on video camera. Defendant has not disputed these assertions, but contends that claimant has produced no proof to establish that the Facility was put on notice of the essential facts, and that he failed to provide a copy of any of the alleged reports or grievances.
Assuming claimant's assertions to be true, however, this Court finds that this incident, which resulted in a Tier III Hearing where claimant was found guilty of an assault on staff, together with claimant's appeal of this determination, certainly provided the State with notice of the essential facts constituting this claim, and provided the State with an opportunity to investigate the circumstances surrounding the claim. Furthermore, if claimant's assertion that this incident was captured by video camera is true, the existence of that video, together with the misbehavior reports and investigation, will not obviate in any substantial prejudice to the State.
The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]). In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). Unlike a party who has timely filed a claim, however, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]).
In this particular matter, it is undisputed that an incident occurred on November 19, 2014 involving several correction officers in their efforts to restrain claimant. Claimant even acknowledges...
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