The following papers numbered 1-3 were read and considered by the Court on movant’s application to file a late claim: Notice of Motion, Movant’s Supporting Affidavit and Exhibit 1 Attorney’s Affirmation in Opposition and Exhibits 2 Movant’s Reply Affidavit and Exhibits 3 DECISION AND ORDER Movant brings this application for leave to serve and file a late claim against the State (Movant’s Ex. 1). The proposed claim alleges that on January 25, 2022, during movant’s incarceration at Eastern NY Correctional Facility (Eastern), movant was ordered to submit to a frisk at the “frisk shack” located at the entrance of the main recreation yard at Eastern (Movant’s Ex. 1, 3). Movant maintains that he was compliant and was not aggressive (id.). The proposed claim further alleges that three correction officers in the frisk shack frisked movant and searched his belongings. One correction officer was identified as Correction Officer Blum and the others were not identified. Thereafter, Blum allegedly struck movant in the back of the head several times as the second correction officer held movant’s hands behind him and the third correction officer sprayed movant with mace. The correction officers then allegedly dragged movant outside the frisk shack and allegedly, in the presence of sergeants, “multiple officers kicked, punched, twisted [movant's] hands and legs, pulled out locks of [movant's] hair, and knelt on [movant's] back” (id.). Movant was then handcuffed and escorted to the facility clinic by unnamed correction officers who, en route, allegedly punched and kicked movant. At the clinic, movant’s injuries were photographed and he received medical treatment. Movant was escorted from the clinic to the Special Housing Unit (SHU). At SHU, movant reported that “a lot of his belongings” were missing (id.). Movant filed a facility loss of property claim which was denied and the appeal of that denial was disapproved after a thorough investigation was conducted (Movant’s Reply, Ex. 6). Movant was served with a Misbehavior Report that, according to him, wrongly alleges that during the frisk he spun off the wall in an aggressive manner towards Correction Officer Blum at which point Blum used forced upon movant. Movant was found guilty of the charges at a Tier 3 disciplinary hearing on February 15, 2022 and movant filed an administrative appeal of that disposition (State’s Ex. B). On February 17, 2022, the penalty imposed was affirmed by the facility superintendent (id.). Movant argues that, as a “layperson to the law” and due to his inability to confer with counsel, his lack of knowledge, and the circumstances of his incarceration, he served an unverified notice of intention to file a claim upon the attorney general’s office on April 18, 2022 (Movant’s Supporting Affidavit 4; Movant’s Reply, Ex. 3). The State treated the unverified notice of intention to file a claim as a nullity and returned it to movant (Movant’s Supporting Affidavit 4). The notice of intention to file a claim was then verified and “returned back” to the attorney general’s office on May 2, 2022 (Movant’s Reply, Ex. 3). Movant concedes the service of the verified notice of intention to file a claim upon the attorney general’s office was untimely. Movant argues that the untimely service of his notice of intention to file a claim is excusable due to the reasons he set forth above. Movant further argues that the State had timely notice of his claim from the State employees who witnessed the incident, the Misbehavior Report issued to movant, the disciplinary hearing, and the special investigation conducted in February of 2022. Thus, movant argues that the State is not prejudiced by the delay as the State had notice of the essential facts underlying the claim. Finally, movant argues that his claim has merit. As a result of the incident, movant claims that he has suffered disfigurement of his right thumb, a swollen eye, a blood clot in his left eye, upper back and neck pain, severe mental trauma, emotional anguish, loss of property, and 60 days of wrongful confinement in SHU (Movant’s Ex. 1, 6). The State opposes the application on numerous grounds and in support of its opposition the State submits certified copies of movant’s Misbehavior Report, the Superintendent Hearing Disposition Rendered, the Review of the Disciplinary Disposition and Movant’s Disciplinary History (State’s Exs. A-D). The State argues that movant’s application is supported solely by his own self-serving statements and that movant failed to submit any valid documentary support for his application such as a Use of Force Report, medical records or an Unusual Incident Report. In reply to the State’s opposition, movant submits copies of his Ambulatory Health Record and copies of photographs of movant’s injuries taken by a correction officer on the date of the alleged incident (Movant’s Reply, Exs. 2, 5). In the interests of justice and judicial economy, the Court has considered the exhibits included with movant’s reply papers. Preliminarily, to the extent that movant seeks late claim relief regarding his claim of lost property at Eastern, the State correctly argues that the Court is without jurisdiction to grant a late claim application involving an incarcerated individual’s property claim (see Encarnacion v. State of New York, 133 AD3d 1049 [3d Dept 2015]). The provisions of Court of Claims Act §10 (6) that vest the Court of Claims with discretionary authority to permit the service and filing of a late claim do not apply to an incarcerated individual’s property claim (see Roberts v. State of NewYork, 11 AD3d 1000, 1001 [4th Dept 2004]). Accordingly, movant’s application seeking late claim relief regarding his allegedly lost property at Eastern is DENIED. Next, the Court will address movant’s application as it pertains to the allegations in his proposed claim of assault and battery and his wrongful confinement in SHU. The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v. New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979 [1982]). The Court finds that movant’s purported excuses for his delay in bringing a timely claim are not persuasive (see Borawski v. State of New York, 128 AD3d 628, 629 [2d Dept 2015] [Ignorance of the law is not excusable]; Matter of Thomas v. State of New York, 272 AD2d 650 [3d Dept 2000][Movant's conclusory allegations regarding his lack of access to the law library and legal assistance during his incarceration were insufficient to establish an excuse for his delay]). This, however, is but one factor and it is not a determinative factor, Next, while no single factor is determinative, it would be futile to grant a late claim application where the proposed claim is of questionable merit or would be subject to dismissal (see Matter of Barnes v. State of New York, 158 AD3d 961[3d Dept 2018]; Ortiz v. State of New York, 78 AD3d 1314 [3d Dept 2010]; Savino v. State of New York, 199 AD2d 254 [2d Dept 1993]). Unlike a party who has timely filed a claim, a party seeking to file a late claim has the greater burden of establishing an appearance of merit of the proposed claim (see Nyberg v. State of New York, 154 Misc 2d 199 [Ct Cl 1992]; Matter of Santana v. New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). With regard to the proposed claim of assault and battery, movant submits his own affidavit regarding the alleged incident, his Ambulatory Health Record and photographs of movant’s injuries that were taken by a correction officer on the date of the alleged incident (Movant’s Reply, Exs. 2, 5). Movant’s proposed claim of wrongful confinement does not allege any due process violations or irregularities in the hearing. Rather, the claim of wrongful confinement is based upon movant’s contention that the Misbehavior Report is false because he did not spin off the wall, he was never aggressive and he obeyed all commands issued by the correction officers (Movant’s Affidavit, Ex. 1, 3). The State submits certified records which establishes that Sergeant J. Osterhoudt issued a Misbehavior Report to movant on January 25, 2022, charging him with violations of creating a disturbance, violent conduct, interference and “search/frisk” (State’s Ex. A). The description of the incident set forth in the Misbehavior Report states that: “[movant] was picked for a random frisk while entering the yard. During the pat frisk [movant] spun off the wall in an aggressive manner towards Officer Blum, at which point force was used. I Sgt. Osterhoudt called for a team response, causing the movement and operation of the facility to stop. Mechanical restraints were applied and [movant] was escorted [to the] facility hospital and then sent to S.H.U. 26 per Lt. Van Dewert pending a disciplinary hearing” (id.). After a disciplinary hearing, movant was found guilty of all charges and sentenced to remain in SHU until May 25, 2022 (State’s Ex. B). As was previously noted, on February 17, 2022, the penalty imposed was affirmed by the facility superintendent. There is no indication that the charges were overturned on appeal as the disciplinary disposition remains a part of movant’s disciplinary record (State’s Ex. C). It is well established that the State is accorded absolute immunity for the actions of its employees involved in the investigation and prosecution of disciplinary charges brought against incarcerated individuals in a correctional facility and for the actions of the hearing officer charged with presiding over and reviewing such matters. This immunity covers discretionary conduct due to its quasi-judicial nature, even if that discretion was erroneously exercised or the findings were subsequently overturned (see Arteaga v. State of New York, 72 NY2d 212 [1988]; Loret v. State of New York, 106 AD3d 1159 [3d Dept 2013]; Holloway v. State of New York, 285 AD2d 765 [3d Dept 2001]; Varela v. State of New York, 283 AD2d 841 [3d Dept 2001]). Absolute immunity may be lost, however, if the State acted in contravention of a governing rule or regulation which caused the incarcerated individual to suffer actual prejudice or a deprivation of his due process rights (see Miller v. State of New York, 156 AD3d 1067 [3d Dept 2017] [The State retained its immunity and the cause of action for wrongful confinement was dismissed where claimant failed to establish any prejudice resulting from the alleged one day delay in commencing the disciplinary hearing and the alleged failure to comply with the pertinent regulation, or that, but for the delay the outcome of the hearing would have been different]). Here, as noted above, movant does not allege any due process violations or that the State failed to comply with any of its rules or regulations in the manner in which the hearing was conducted and the disposition was affirmed by the facility superintendent upon an administrative appeal and review. Thus, the Court finds that movant has not established an appearance of merit of his wrongful confinement claim (see Bottom v. State of New York, 142 AD3d 1314, 1316 [4th Dept 2016]). Movant’s failure to establish an appearance of merit of his claim of wrongful confinement, coupled with his failure to establish a reasonable excuse for his delay, warrants denial of his late claim application regarding his claim of wrongful confinement (see Morris v. Doe, 104 AD3d 921 [2d Dept 2013] [late claim application denied where no reasonable excuse and no appearance of merit]). Accordingly, movant’s late claim application is DENIED as to his claim of wrongful confinement. With regard to movant’s proposed claim of assault and battery, the law is well-settled that the State is not immune from liability for assault and battery when an officer uses more force than is necessary in the performance of the officer’s duties (see Arteaga, 72 NY2d at 220-221; Jones v. State of New York, 33 NY2d 275 [1973]). However, the State will not be held liable where the force employed is reasonable to maintain security and is in conformity with the facility’s applicable rules or regulations (see Arteaga, 72 NY2d). The applicable regulation governing the use of physical force by an employee of the Department of Corrections and Community Supervision provides that physical force may be used “where it is necessary to use physical force” and “only such degree of force as is reasonably required shall be used” (7 NYCRR. §251-1.2 [b]). Correction Law §137 [5] provides in pertinent part that, “[w]hen an incarcerated individual…shall offer violence to any person…or resist or disobey any lawful direction…the officers and employees shall use all suitable means to defend themselves, to maintain order, to enforce observation of discipline, to secure the persons of the offenders and to prevent any such attempt…” The Court has considered all of the papers submitted by the parties. Movant’s Ambulatory Health Record states that movant was “involved in a Use of Force” (Reply Ex. 2). The Ambulatory Health record also indicates that movant stated that he was “pushed to the floor” and that he had an “altercation” (id.). Additionally, movant’s Ambulatory Health Record documents an abrasion to movant’s forehead and his right knee, redness and swelling to both eyes and that movant experienced numbness on the side of his head and burning in both eyes. The Court finds that the details documented in movant’s Ambulatory Health Record and the photographs taken of movant by a correction officer on the date of the alleged incident depicting multiple injuries are consistent with movant’s affidavit and the allegations of the proposed claim (Reply Ex. 5). Additionally, the Court rejects the State’s argument that movant’s failure to submit a copy of a Use of Force Report weighs against a showing of an appearance of merit as movant’s Ambulatory Health Record states that movant was “involved in a Use of Force” (Reply Ex. 2). Similarly, the Court rejects the State’s argument that movant’s failure to submit a copy of an Unusual Incident Report weighs against a showing of an appearance of merit as the Superintendent Hearing Disposition Rendered, submitted by the State, makes specific reference to movant’s statement at the hearing that “there is no UI [Unusual Incident Report]” (State’s Ex. B). Upon the Court’s consideration of all the papers before it, the Court finds that movant has established an appearance of merit of his proposed claim of assault and battery. In addition to the aforenoted factors considered by the Court, the Court has also considered the other relevant factors including 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 failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and whether the movant has another available remedy. Upon the Court’s consideration of all the relevant factors, the Court finds that while movant did not present a reasonable excuse for his delay and movant may have had another available remedy against the individual officers in another Court, the showing of an appearance of merit, coupled with the absence of any indication of substantial prejudice to the State resulting from movant’s delay, weighed heavily in the Court’s determination that movant made a sufficient showing to warrant granting his application as to the proposed claim of assault and battery. Accordingly, movant’s late claim application pertaining to his allegation of assault and battery is GRANTED. A claim alleging assault and battery shall be served and filed within 60 days of the filed-stamped date of this Decision and Order and shall be served and filed in compliance with the provisions of the Court of Claims Act. Dated: October 19, 2022
