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
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
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
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
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
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.