The following papers numbered 1-3 were read and considered by the Court on movant's late claim application:

Notice of Motion, Attorney's Supporting Affirmation and Exhibits 1

Attorney's Affirmation in Opposition and Exhibit 2

Attorney's Reply Affirmation and Exhibit 3

Movant brings this late claim application pursuant to Court of Claims Act § 10 (6). The proposed claim alleges that on November 28, 2023, during movant's intake for incarceration at Green Haven Correctional Facility (Green Haven), movant presented two intake officers with a signed court order dated November 17, 2023 (Movant's Exs. A, ¶ 6-7; B; I, ¶ 4). The court order provides that, pursuant to New York State Department of Corrections and Community Supervision (DOCCS) Directive No. 4914, movant is exempt from the requirement of an initial haircut upon admission to a DOCCS facility based upon his professed religious status as a [*2]Rastafarian who refuses an initial haircut and based upon the additional basis that movant has a court order restraining DOCCS from enforcing its initial haircut regulation upon movant (Movant's Ex. B). The proposed claim alleges that the two intake officers ripped up the order and threatened movant with physical violence if he did not submit to a haircut (Movant's Ex. A, ¶ 8). The officers then proceeded to cut movant's hair/dreadlocks (id. at 10).

The proposed claim alleges that movant's hair was cut in violation of DOCCS's own regulation, a court order directing DOCCS from refraining from cutting movant's hair, movant's state constitutional rights under Articles 1 and 3, and the New York State Human Rights Law. The proposed claim further alleges that the State was negligent in its failure to adequately train, supervise, discipline, and retain correction officers who were fit for employment and that the State is liable for the intentional conduct of its correction officers who committed an assault and battery by cutting movant's hair.

In support of his late claim application, movant submits his affirmation with supporting exhibits including: the unsigned copy of the judicial order dated November 17, 2023 directing DOCCS to refrain from cutting movant's hair based upon his professed religious status as a Rastafarian ^[FN1] (Movant's Ex. I; Movant's Ex. B, [People v Cooper, Sup Ct, NY County, Nov. 17, 2023, index No. 00918/2021 [unsigned Judicial Order]); a court order dated January 5, 2024 directing DOCCS to refrain from cutting movant's hair based upon his professed religious status as a Rastafarian (Movant's Ex. C, People v Cooper, Sup Ct, Kings County, Jan. 5, 2024, Tully, J., indictment No. 00281-2020 [No Haircut Order]); a court order dated June 28, 2024 directing DOCCS to refrain from cutting movant's hair based upon his professed religious status as a Rastafarian and indicating that the order is in effect "nunc pro tunc from the date of the original order of November 15, 2023" (Movant's Ex. D, People v Cooper, Sup Ct, NY County, July 3, 2024, Beller, J., index No. 00918/2021 [Judicial Order]); movant's DOCCS identification depicting his shaved head (Movant's Ex. E); and a copy of DOCCS Directive No. 4914, III. Regulations, A. Grooming Standards at Reception, 5. Exemption to Haircuts (Movant's Ex. H).^[FN2]

According to movant's affirmation, on an unspecified date, movant filed a facility grievance based upon the unauthorized cutting of his hair by DOCCS, which was ignored, and, upon movant's transfer to Elmira Correctional Facility, movant filed a second grievance regarding the same unauthorized cutting of his hair (Movant's Ex. I, ¶¶ 10-11). On February 12, 2024, movant filed a pro-se complaint in the federal court in the Southern District of New York pursuant to 42 USC § 1983 (Movant's Ex. F). By federal court order dated June 10, 2024, United [*3]States District Judge Kenneth M. Karas issued a VALENTIN ORDER directing the Office of the Attorney General to identify, within 60 days of the court order, the individuals allegedly involved in the incident (Movant's Ex. G, Cooper v Greene Haven Correctional Facility, US Dist Ct, SD NY, 24-CV-1128, Karas, J., June 10, 2024 [Valentin Order]). Pursuant to the order, two correction officers were identified and were named in an Amended Complaint in the federal court action (Ex. J).

The State opposes movant's application on numerous grounds. Specifically, the State argues that movant's purported excuse that his attorney was waiting for a response to a Freedom of Information Law (FOIL) request for movant's records is not excusable and did not prevent movant from commencing a timely proceeding in the Court of Claims. Additionally, the State argues that movant has not established an appearance of merit of his alleged state constitutional tort claim. In that regard, the State argues that a constitutional tort claim will not be imposed where movant has an adequate alternative remedy via a 42 USC § 1983 in another forum and movant has commenced such an action in federal court (State's Ex. A). The State also argues that movant has an available remedy in Supreme Court pursuant to Correction Law § 610 regarding the alleged violation of movant's religious freedom and that the Court of Claims does not have jurisdiction to hear such a claim or to hear any proposed federal constitutional tort claims. Finally, the State argues that the State did not have notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the claim. The State failed to address the issue of substantial prejudice.

In Reply, movant argues, inter alia, that the State's opposition is directed only to the state and constitution tort claims and that the State does not make any arguments in opposition to the proposed causes of action alleging intentional torts or negligence under the theory of respondeat superior or the State's failure to properly train, supervise or discipline the correction officers who cut movant's hair in violation of a court order. Movant concedes that he is not seeking any damages under the state constitution and that he is not asserting a federal constitutional claim (Reply, ¶¶ 12,14). Movant further asserts that he will remove any reference to state constitutional torts if his late claim application is granted (Reply, ¶ 12). Finally, movant argues that the State had an opportunity to investigate when it received notice of the federal court action within 90 days of the incident and the Office of Special Investigations conducted an investigation. Additionally, the federal court ordered an investigation to identify the correction officers involved in the incident. Thus, movant maintains that two investigations were conducted by the State.

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 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' [*4]Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).

With regard to the first factor, of whether movant's delay was reasonable, movant argues that he filed a lawsuit in federal court pro-se 76 days after the incident occurred on November 28, 2023 and that it was not until August 2024 that he retained counsel. Upon retaining counsel, movant learned that the Court of Claims was the appropriate forum for his negligence claim against the State and that such claims must be served and filed within 90 days after the accrual of his claim on November 28, 2023. Further, while movant's counsel promptly requested movant's DOCCS records through a FOIL request, only part of the requested records were received in October 2024 and the remaining documents were still outstanding as of the filing of movant's late claim application in November 2024.

The Court finds that movant's purported excuse for his delay is principally ignorance of the law, which is not a reasonable excuse (see Borawski v State of New York, 128 AD3d 628, 629 [2d Dept 2015] [Ignorance of the law is not excusable]; Goldstein v State of New York, 75 AD2d 613 [2d Dept 1980] [An alleged incapacity to timely commence an action is not an adequate excuse without either a physician's affidavit or hospital record]). In any event, whether movant has established a reasonable excuse for the delay is but one factor to be considered by the Court in addressing movant's late claim application and it is not a determinative factor.

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 "even if the other factors in Court of Claims Act § 10 (6) supported the granting of the [application for late claim relief]" (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010]). Unlike a party who has timely filed a claim, a party seeking to file a late claim has the greater 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]; Matter of Santana v New York State Thruwav Auth., 92 Misc 2d 1 [Ct Cl 1977]).

To establish an appearance of merit of the proposed claim, movant is required to demonstrate that the causes of action alleged are not patently groundless or frivolous and that the record as a whole gives reasonable cause to believe that a valid cause of action exists (see Swart v State of New York, 211 AD3d 881 [2d Dept 2022]; Sands v State of New York, 49 AD3d 444 [1st Dept 2008]).

In the instant case, the Court finds that, upon review of the record as a whole, movant has sufficiently established an appearance of merit of the causes of action alleged in the proposed claim that the State was negligent in its failure to adequately train, supervise, discipline, and retain correction officers who were fit for employment and that the State is liable for the intentional conduct of its correction officers who committed an assault and battery by cutting movant's hair in violation of DOCCS's own regulation and a court order directing DOCCS from refraining from cutting movant's hair.

The factors of 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, and whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State, are often considered together. In the case at bar, the Court finds that movant has met the initial burden of showing that the State would not be substantially prejudiced by granting movant's late claim relief (see Matter of Newcomb v Middle Country [*5]Cent. Sch. Dist., 28 NY3d 455, 466 [2016]; Schnier v New York State Thruway Auth., 205 AD3d 958 [2d Dept 2022]). In that regard, the Court finds that the State's arguments that it did not have timely notice and an opportunity to investigate were conclusory and not compelling. Additionally, the State did not even address the issue of substantial prejudice. Thus, the Court finds that the State failed to refute movant's initial showing of a lack of prejudice with a particularized showing that the State would be substantially prejudiced if movant was granted late claim relief (Matter of Newcomb, 28 NY3d at 467). Notably, a finding that the State would be substantially prejudiced cannot be based solely on speculation, inference, or the mere passage of time in the absence of some showing of actual injury to the State (id. at 465-466; Matter of Sarkisian Bros. v State Div. of Human Rights, 48 NY2d 816, 818 [1979]). Thus, the Court finds that the factors regarding notice, an opportunity to timely investigate, and substantial prejudice weigh in favor of granting movant's late claim application with regard to allegations that the State was negligent in its failure to adequately train, supervise, discipline, and retain correction officers who were fit for employment and that the State is liable for the intentional conduct of its correction officers who committed an assault and battery by cutting movant's hair in violation of DOCCS's own regulation and a court order directing DOCCS from refraining from cutting movant's hair.

As to the factor of whether movant has another available remedy, the Court notes that the State failed to address this factor. The Court finds that movant has another available remedy via his pending 42 USC § 1983 action in federal court. Additionally, movant may have another available remedy via a Supreme Court action pursuant to Correction Law § 610.

In sum, upon consideration and weighing all the relevant factors, the Court finds in favor of granting movant's late claim application as to the aforenoted causes of action (see Matter of Hughes v State of New York, 25 AD3d 800 [2d Dept 2006]).

Accordingly, movant's late claim application is GRANTED as to the causes of action alleging that the State was negligent in its failure to adequately train, supervise, discipline, and retain correction officers who were fit for employment and that the State is liable for the intentional conduct of its correction officers who committed an assault and battery by cutting movant's hair in violation of DOCCS's own regulation and a court order directing DOCCS from refraining from cutting movant's hair, and movant shall, within forty-five (45) days of the filing date of this Decision and Order, file a claim with the Clerk of the Court of Claims, asserting only the aforenoted causes of action, and movant shall serve a copy of said claim upon the State in accordance with the requirements of the Court of Claims Act.