The following papers numbered 1-2 were read and considered by the Court on movant's late claim application:

Motion For Permission To File A Late Claim, Supporting Affidavit of Gregory Rheubottom, the Senior Paralegal for the Law Office of Robert A. Walters, Esq. and Exhibits. 1

Affirmation in Opposition and Exhibit 2

Movant seeks permission to serve and file a late claim alleging the following. On April 6, 2023, during movant's incarceration at Greene Correctional Facility, movant was issued a misbehavior report wrongfully charging him with assaulting another incarcerated individual in the facility bathroom on that same date. Movant was placed in the "Segregated Housing Unit" (SHU) awaiting a disciplinary hearing which "commenced in early April" of 2023 (Proposed Claim, ¶ 3 [e], [g]). At the hearing, movant notified the hearing officer that he would be represented by counsel and the hearing recommenced on April 20, 2023 with movant represented by counsel (id.). Upon the conclusion of the disciplinary hearing, movant was found not guilty of the charges and was released from SHU (id. at 3 [g],[f]). Movant seeks damages for his allegedly wrongful confinement in SHU until his release on or about April 20, 2023 (id. at 3 [g], 4).

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 defendant had notice of the essential facts constituting the claim; (3) whether defendant 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 defendant; and (6) whether 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 BayTerrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).

The Court has considered all the relevant factors.

Movant's purported excuse for his delay is that he did not timely receive copies of the claim sent to him at the facility by Gregory Rheubottom, the Senior Paralegal from the law office that movant had retained to represent him at his disciplinary hearing at the facility. According to movant, the copies were sent to him at the facility on June 9, 2023 and then again on June 23, [*2]2023. However, movant did not receive the copies of the claim from the facility until July 10, 2023. Additionally, movant maintains that the facility intentionally delayed in providing movant with the services of a notary until July 29, 2023. Notably, the State does not argue that movant's purported excuse is unreasonable. Accordingly, the Court finds that this factor weighs in favor of granting movant's application. This, however, is but one factor and it is not a determinative factor (see Borawski v State of New York, 128 AD3d 628, 629 [2d Dept 2015]). Additionally, with the exception of the appearance of merit factor, the State does not argue that the other factors to be considered by the Court weigh against granting movant's application. Accordingly, the Court finds that the factors which the State does not oppose also weigh in favor of granting movant's application.

The only factor which the State argues does not weigh in favor of granting movant's application is the appearance of merit of the proposed claim. The Court notes that courts have held that, while no single factor is controlling, 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]; see Barnes v State of New York, 158 AD3d 961, 962 [3d Dept 2018] ["(W)hile no single factor is deemed controlling, this Court has consistently declined to disturb the denial of a claimant's [late claim] application where the proposed claim is of questionable merit and inadequate excuses are offered for the delay"]).

Furthermore, 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 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 Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).

With regard to movant's allegation of wrongful confinement, 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 (see Arteaga v State of New York, 72 NY2d 212 [1988]). 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, 72 NY2d; Moreland v State of New York, 200 AD3d 1362 [3d Dept 2021]; Loret v State of New York, 106 AD3d 1159 [3d Dept 2013], lv denied 22 NY3d 852 [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 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 his disciplinary hearing and the alleged failure to comply with the pertinent regulation, or that, but for the delay, the outcome of his hearing would have been different]).

In the case at bar, the proposed claim does not allege, with sufficient specificity, that movant was denied his rights to due process or that the State employees either exceeded the [*3]scope of their authority or acted in contravention of a governing rule or regulation (see Diaz v State of New York, 155 AD3d 1279, 1280 [3d Dept 2017] [Summary judgment was properly awarded to the State dismissing the claim for wrongful confinement on the grounds that the State was entitled to absolute immunity where the record failed to demonstrate that claimant was denied his rights to due process and there was no showing that the Hearing Officer had either exceeded the scope of her authority or had violated the pertinent governing statutes and regulations]). Thus, the Court finds that movant has not demonstrated an appearance of merit of his proposed claim alleging wrongful confinement and therefore it would be futile to grant movant's application because the proposed claim would be subject to dismissal on the basis that the State is entitled to absolute immunity (see Morris v Doe, 104 AD3d 921 [2d Dept 2013]).

Accordingly, movant's application for late claim relief is DENIED.