New York State Court of Claims

New York State Court of Claims

BAILEY v.THE STATE OF NEW YORK, #2000-011-544, Claim No. NONE, Motion No. M-61591


Synopsis


Claimants motion for permission to file a late claim alleging State was negligent in failing to prevent an assault upon him by another inmate, is denied.

Case Information

UID:
2000-011-544
Claimant(s):
WAYNE BAILEY
Claimant short name:
BAILEY
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-61591
Cross-motion number(s):

Judge:
Thomas J. McNamara
Claimant's attorney:
Wayne Bailey, 93 A 4705, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer(Kathleen M. Resnick, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
July 13, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is a motion for permission to file a late claim in which Claimant alleges that the State was negligent in failing to prevent an assault upon him by another inmate. When considering a motion for permission to late file a claim, the court is required to address six factors enumerated in Court of Claims Act §10(6). The first of those factors is whether there is a reasonable excuse for the delay in filing. The excuse offered by Claimant, that he was unable to obtain assistance in preparing the claim despite having served a timely notice of intention, is insufficient inasmuch as the excuse must relate to the ninety day period following accrual of the claim (Cole v State of New York, 64 AD2d 1023).

Other factors to be considered are whether Defendant had notice of the essential facts of the claim and an opportunity to investigate. Given that a timely notice of intention was served, Defendant had notice and an opportunity to investigate and the delay in filing has not caused substantial prejudice to Defendant.

Also to be considered is whether the proposed claim has an appearance of merit. A claim is said to have merit when it is not patently groundless, frivolous or legally defective and there is reason to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). The State has a duty to use reasonable care to protect its inmates from foreseeable risks of harm, including foreseeable risks of attack by fellow prisoners (Colon v State of New York, 209 AD2d 842). Here, however, Claimant has alleged that his assailant is unknown and he has not alleged any facts or circumstances which would indicate that the Defendant was aware of any specific as opposed to a general, threat of harm to him. Without such an allegation it is not possible to conclude that the risks of attack on Claimant was foreseeable. Accordingly, the proposed claim is without an appearance of merit.

No adequate alternate remedy is available.

On balance, consideration of the factors in CCA §10(6) weigh against granting the application and accordingly, the motion is denied.

July 13, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers considered:

  1. Notice of Motion and Affidavit in Support sworn to the 29th day of March, 2000 with exhibits annexed.
  2. Affirmation in Opposition of Kathleen M. Resnick dated March 14, 2000 with exhibits annexed.
  3. Answer to Affirmation in Opposition sworn to the 22nd day of March, 2000.
  4. Affirmation in Opposition of Kathleen M. Resnick dated April 6, 2000.
  5. Reply to Defendant's Affirmation in Opposition sworn to the 17th day of April, 2000.