New York State Court of Claims

New York State Court of Claims

FERRARI v. THE STATE OF NEW YORK, #2000-011-550, Claim No. NONE, Motion No. M-61586


Claimant motion for permission to late file the claim is granted in part, limited to the cause of action for negligence, in the manner required by Court of Claims Act §11.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Thomas J. McNamara
Claimant's attorney:
Raymond Ferrari, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(Michael C. Rizzo, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
July 13, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


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 placed a notice of intention in the hands of correction officials in time for it to have been timely served is insufficient.

Other factors to be considered are whether Defendant had notice of the essential facts of the claim and an opportunity to investigate. Some of the documents submitted in support of the motion indicate that Claimant received medical treatment for the injuries he alleges he sustained in the assault. Furthermore, considering that a notice of intention was received on the ninety-second day after the incident, 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). Claimant has alleged causes of action based upon negligence and constitutional tort in connection with the incident. 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). Claimant alleges in the proposed claim that he had been involved in altercations with other inmates at the facility and warned officials at the facility that his program placement would put him at risk of attack by those inmates. Claimant maintains that his pleas for placement in another program were ignored and subsequently, he was assaulted by two of those inmates. The allegations clothe the proposed negligence claim with an appearance of merit.

However, the cause of action based upon constitutional tort does not have an appearance of merit. In instances where a common law cause of action is available to redress the same injuries alleged in the constitutional claim, no useful purpose is served by implying a remedy under the constitution (Remley v State of New York, 174 Misc 2d 523) and the presence of the common law remedy means that an adequate alternate remedy is available for the alleged wrong (Augat v State of New York, 244 AD2d 835). Inasmuch as Claimant has available to him a common law cause of action for negligence, the constitutional tort remedy will not be implied.

No adequate alternate remedy is available.

On balance, consideration of the factors in CCA §10(6) weigh in favor of granting the application insofar as a cause of action for negligence is alleged.

Claimant has also submitted a motion for permission to proceed as a poor person. In the affidavit submitted in support of the motion, Claimant states that he has no assets, that he is unable to pay the costs, fees and expenses necessary to prosecute the action, that he has no income and that no other person is beneficially interested in the recovery sought. Claimant has set forth the nature of the claim on sufficient facts to establish its merit in the affidavit in support of the motion for permission to late file the claim.

The statute provides that a party granted poor person status shall not be liable for the payment of any costs or fees unless a recovery is had in his favor (CPLR 1102[d]). In addition, the Court may, in its discretion, assign an attorney to represent the indigent party (CPLR 1102[a]) but, except where the litigation has reached the stage of appellate review, that is the limit of the privileges to which a person might be entitled under the statute.

Insofar as the application seeks reduction of the filing fee in this court pursuant to CPLR 1101(f), it is premature. Claimant, if he is so advised, should make the application anew when he files the claim with the court. Appointment of an attorney is the only remaining benefit Claimant could obtain.

The claim, which is based upon an allegation of negligence, is the type of claim generally handled by attorneys on a contingent fee basis so that Claimant's indigence is not an obstacle to obtaining legal counsel. The request for appointed counsel is, therefore, denied.

The motion for permission to late file the claim is granted in part and Claimant is to serve and file the proposed claim, limited to the cause of action for negligence, in the manner required by Court of Claims Act §11 within thirty days of service upon him of a file-stamped copy of this order. The motion for poor person status is denied without prejudice.

July 13, 2000
Saratoga Springs, New York

Judge of the Court of Claims

Papers Considered:

1. Motion for Permission to File a Late Claim sworn to the 27th day of January, 2000 with exhibits annexed.
2. Affidavit in Opposition of Michael C. Rizzo, Esq., sworn to the 10th day of February, 2000.