Notice of Motion, Proposed Claim 1, 2
Affirmation in Opposition of Kathleen
M. Resnick, Esq., Annexed Exhibit 3, 4
On December 11, 1999, an inmate allegedly threw a hot liquid substance into
claimant's cell at Clinton Correctional Facility. Claimant states that he
sustained first and second degree burns as a result of the assault. Claimant
asserts that the cell door of his assailant had been negligently opened by
prison personnel, thus affording the opportunity for the assault. He seeks
permission to late file a claim.
The initial inquiry is whether the current motion was filed before the
expiration of the Statute of Limitations for filing a like claim against a
citizen (Court of Claims Act § 10). The proposed claim is premised upon
negligence, which is governed by a three-year Statute of Limitations. The
motion is thus timely and the statutory factors will be considered.
The factors weighed by the court on an application to late file include: (1)
whether the delay in filing 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; and (6) whether any other remedy is
available (Court of Claims Act § 10). The court is afforded
considerable discretion in determining whether to permit the late filing of a
claim (see, e.g., Matter of Gavigan v State of New York, 176 AD2d 1117).
The presence or absence of any particular factor is not dispositive (Bay
Terrace Coop. Section IV v New York State Employees' Retirement System
Policemen's & Firemen's Retirement System, 55 NY2d 979).
Claimant asserts that the delay in filing should be excused because he is not
a lawyer and, additionally, he contends that he was not given immediate access
to the prison's law library. The fact that claimant is proceeding pro se does
not exempt him from complying with the substantive requirements of the law
(see, Duffen v State of New York, 245 AD2d 653, lv denied 91 NY2d
810; Sloninski v Weston, 232 AD2d 913, lv denied 89 NY2d 809).
Moreover, ignorance of the filing requirements is not an acceptable excuse
(see, e.g., Matter of Galvin v State of New York, 176 AD2d 1185, lv
denied 79 NY2d 753; Modern Transfer Co. v State of New York, 37 AD2d
756). Claimant's contention that he did not have immediate access to the law
library is unconvincing. Although an inmate who shows that he was denied all
access to a law library and was not allowed legal resources in his cell may have
a viable excuse (see, Cosme v State of New York, Ct Cl, Dec. 13, 1994
[Motion No. M-50438], Bell, J., at 2), claimant's allegations fall far short of
such a showing. Indeed, it appears he did have access to the law library,
albeit not immediate, and at least he could have prepared and served a notice of
intention. Moreover, his assertion regarding his problems in obtaining legal
assistance are devoid of any allegation regarding the time-frame, thus leaving
the court to speculate as to when claimant sought such assistance. The
allegations in the papers presented regarding lack of immediate access to the
law library and legal assistance are insufficient to excuse claimant's delay in
filing (see, Matter of Thomas v State of New York, AD2d
[May 4, 2000 Third Dept.]). The first factor weighs against
The factors of notice, opportunity to investigate and substantial prejudice
will be considered together. The alleged incident occurred in a prison and
claimant received treatment at the prison's hospital. Defendant clearly had
notice of the incident and defendant acknowledges that it investigated the
matter. The presence of notice and an opportunity to investigate leads to the
conclusion that defendant would not be substantially prejudiced in defending the
claim. Claimant has successfully satisfied the related factors of notice,
opportunity to investigate and lack of substantial prejudice.
The merit factor is particularly important because it would be an exercise in
futility to permit a meritless claim to proceed (Savino v State of New
York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). The
law regarding an inmate-on-inmate assault is well settled. The State has a duty
to provide inmates reasonable protection against the foreseeable risk of attack
by other inmates (Flaherty v State of New York, 296 NY 342; Blake v
State of New York, 259 AD2d 878). The State is not, however, an insurer of
the safety of inmates and the fact that an assault occurs does not give rise to
an inference of negligence (Schittino v State of New York, 262 AD2d 824).
To establish liability for an inmate-on-inmate assault, a claimant generally
must show that (1) the victim was a known risk and the State failed to provide
reasonable protection (Sebastiano v State of New York, 112 AD2d 562), (2)
the State had notice that the assailant was particularly prone to perpetrating
such an assault and failed to take proper precautionary measures (Littlejohn
v State of New York, 218 AD2d 833), or (3) the State had ample notice and
ample opportunity to intervene but failed to act (see, Huertas v State of New
York, 84 AD2d 650).
Here, claimant does not allege any prior animosity with his assailant or that
his assailant was particularly prone to assaultive conduct. Indeed, claimant
does not even identify the inmate who assaulted him. Claimant asserts that he
and his assailant stayed in their cells while other inmates on the block went to
the mess hall. Before the other inmates returned from the mess hall, the
officer allegedly began opening cell doors to afford inmates access to their
cells when they returned. Claimant alleges that the officer opened the cell
door of his assailant and that such action afforded his assailant the
opportunity to attack him. Even assuming, arguendo, that the assailant's door
should not have been opened, there is still no basis for liability in the
absence of allegations that defendant had notice that the assailant might
perpetrate an assault or that claimant was a known risk. Indeed, inmates in
general population are often permitted to move about the prison and in the
recreation areas without constant supervision by officers (see, Leibach v
State of New York, 215 AD2d 978; Colon v State of New York, 209 AD2d
842). The mere fact that the assailant was permitted to exit his cell is
insufficient to establish a meritorious claim.
Defendant argues that claimant has another remedy because he can file criminal
charges against his attacker and he may then be eligible for crime victim
assistance. While such argument is commendably creative, it is unconvincing.
Executive Law article 22 provides limited compensation to some victims of crime
as a matter of grace and there is no legal entitlement to relief (see, Matter
of Meditrust Fin. Servs. Corp. v New York Crime Victims Bd., 226 AD2d 881,
882-883). No provision is made in the statute for pain and suffering (Executive
Law § 631), which constitutes the bulk of claimant's alleged damages.
Awards under the statutory framework are limited to victims who have suffered
financial hardship (see, e.g., Matter of Regan v Crime Victims Compensation
Bd., 57 NY2d 190, 194; Matter of Gryziec v Zweibel, 74 AD2d 9, 12).
The chance of claimant receiving any relief from the Crime Victims Compensation
Board is so remote that the court can confidently conclude that claimant does
not have any other available remedy.
After weighing and considering the factors set forth herein and noting
particularly the failure to establish a meritorious claim together with the
absence of an acceptable excuse, the court is not convinced that it would be a
prudent exercise of discretion to permit a late filing of the proposed claim
(see, e.g., Matter of Thomas v State of New York, supra; Matter of E.K. v
State of New York, 235 AD2d 540, lv denied 89 NY2d 815).
Accordingly, it is
ORDERED that claimant's motion is denied.