New York State Court of Claims

New York State Court of Claims

EDWARDS v. THE STATE OF NEW YORK, #2000-013-015, , Motion No. M-61264


Permission is granted to file a late claim alleging injuries received during an attack by fellow inmate were the result of the State's negligence. Affidavit filed after the limitations period expired considered.

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):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 29, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


On April 19, 2000, the following papers were read on Movant's motion for permission to file a late claim, or in the alternative, to have his notice of intention treated as a claim:
1. Notice of Motion;
2. Affirmation of Andrew F. Plasse, Esq., dated February 22, 2000 and Annexed Exhibits;

3. Affidavit of Andrew Edwards, verified March 28, 2000;
4. Affirmation of James L. Gelormini, Esq., dated April 11, 2000 in Opposition to Motion;

5. Letter to Court from Andrew F. Plasse, Esq., dated March 14, 2000;
6. Letter to Andrew F. Plasse, Esq. from James L. Gelormini, Esq., dated March 17, 2000;
7. Letter to James L. Gelormini, Esq. from Andrew F. Plasse, Esq., dated March 30, 2000;

8. Letter to Court from James L. Gelormini, Esq., dated June 16, 2000.

Movant, a former inmate, alleges that he was stabbed in the neck by another inmate while lifting weights in the yard of the Attica Correctional Facility. He attributes the injuries he sustained to the negligence of the State of New York and asks the Court to grant him permission to file a late claim, or alternatively, for permission to treat his notice of intention as a claim.

The State of New York argues that Movant's late claim application should be denied because (1) it was made, at least in part, in an untimely fashion; (2) the motion papers and proposed claim do not demonstrate that the claim is meritorious; and, (3) Movant has not offered any excuse for his delay in asserting the claim. The State also argues that this Court cannot treat Movant's notice of intention as a claim because Court of Claims Act §10(8) is limited to notices of intention that were filed prior to the 1995 amendments to Court of Claims Act §10 -- an argument that has generated debate among the judges of this Court (see, Konviser v State of New York, 180 Misc 2d 174 [Collins, J.]; Waxter v State of New York, Ct Cl, April 5, 2000 [Claim No. 100157, Motion No. M-61267], Bell, J.; Brill v State of New York, Ct Cl, March 27, 2000 [Motion No. M-60994], Bell, J.; compare, Muller v State of New York, Ct Cl, May 5, 2000 [Motion No. M-60862], O'Rourke, J. and Fox v State of New York, Ct Cl, June 7, 1999 [Motion No. M-58800], King, J.).

Court of Claims Act §10(6) provides that a claimant who fails to file a claim within the time limitations provided by the Court of Claims Act "may, nevertheless, in the discretion of the court, be permitted to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" (Court of Claims Act §10[6]). As it has been interpreted, Section 10(6) would permit the Court to grant a claimant leave to file a late claim after the statute of limitations expires as long as the motion is made (i.e., filed and served) before the limitations period expires (see, Marine Midland Bank v State of New York, 195 AD2d 871, 872, lv denied 82 NY2d 661; Williams v State of New York, 235 AD2d 776, 777, lv denied 90 NY2d 806; Muscat v State of New York, 103 Misc 2d 589, 593).

Movant alleges here that his claim accrued on February 24, 1997, the date of the alleged assault. His late claim application, which included his notice of motion, the affirmation of his attorney, a proposed claim and a copy of his notice of intention, was served on the Attorney General on February 22, 2000 and filed with the Court on February 23, 2000. Before the State reponded to his motion, Movant served his own affidavit sworn to March 28, 2000 on the State of New York on March 30, 2000 and filed it with the Court of Claims on March 31, 2000.

The State concedes that the late claim application itself was timely because Movant served and filed it before the statute of limitations for his personal injury negligence claim had expired (see, CPLR 214). The State urges me, however, not to consider Movant's own affidavit because that affidavit was not made or submitted in support of Movant's late claim application until after the expiration of the applicable limitations period (see, CPLR 214). If I considered that affidavit, the State maintains, I would be letting Movant circumvent the time limitations contained in CPLR article 2 and Court of Claims Act §10(6).

I would probably be more sympathetic to the State's argument if Movant's initial filing had contained nothing more than a bare-bones notice of motion. Here, however, the affidavit of Movant's counsel addressed the legal grounds for Movant's motion and the salient facts underlying his claim. It also provided a copy of Movant's handwritten notice of intention which supported the statements made by Movant's counsel in his affirmation. Movant's later-filed affidavit, which the State seeks to exclude, did not interject new factual matter. It simply provided Movant's firsthand account of the events already outlined by his attorney and in the notice of intention. It was, in other words, an apparent attempt to overcome any objection the State might make to counsel's lack of firsthand knowledge of the matters described in counsel's affirmation.

The State's efforts to exclude that affidavit overlooks one important point: Movant reserved the right to submit a reply affidavit in further support of his motion (see, CPLR 2214[b]). Thus, if the State had objected to counsel's affirmation on the grounds that counsel lacked firsthand knowledge, Movant could have then submitted the very affidavit that the State complains about here. To strike Movant's affidavit simply because he submitted it before the State responded to his motion would elevate form over substance. Inasmuch as the State had sufficient time to respond to Movant's belated affidavit and has not otherwise shown that it has been prejudiced by his delay, I will consider Movant's affidavit in connection with this motion (see, Hubbell Electric v State of New York, 153 Misc 2d 810, 813-814).

In determining whether to permit the filing of a late claim, I am required to consider, among other relevant factors, (1) whether the delay in filing the claim 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 to be meritorious; (5) whether the failure to serve and file a timely claim or serve a notice of intention resulted in substantial prejudice to the State; and, (6) whether the Movant has any other available remedy (Court of Claims Act §10[6]).

Four of the six factors enumerated above require little discussion in this case. The first factor weighs in favor of the State, since Movant has not offered any excuse for the delay in filing his claim. The second, third and fifth factors weigh in favor of Movant, since the State has tacitly conceded that it had notice of incident giving rise to the claim, an opportunity to investigate it, and that it has not been prejudiced by the delay.

The fourth factor, the apparent merit of the claim, is always the most important factor in any case, because it would be futile to let a late claim applicant file a claim that has no merit (e.g., Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11).

The State has a duty to provide inmates with reasonable protection against the foreseeable risk of attacks by other prisoners (see, Blake v State of New York, 259 AD2d 878). The State, however, is not an insurer of an inmate's safety and an inmate who seeks to hold the State responsible for negligence as the result of an assault must demonstrate that the State failed to exercise reasonable care to prevent those injuries which were reasonably foreseeable (Blake v State of New York, supra).

As the State correctly points out, the fact that an assault occurred does not, in and of itself, mean that the State was negligent (Padgett v State of New York, 163 AD2d 914, lv denied 76 NY2d 711). There must usually be proof that the State knew that the assailant had intentions or motivations to harm the victim or that the assailant had violent tendencies which made him a danger to the inmate population as a whole (see, Colon v State of New York, 209 AD2d 842, 843-844; Littlejohn v State of New York, 218 AD2d 833, 834).

Movant has not alleged that his assailant, an inmate named Watson, held any animosity toward him. He avers, rather, that another inmate named O'Keefe, was the intended target of Watson's assault. O'Keefe was reportedly lifting weights with Movant at the time of the assault. According to Movant, prison administrators knew at the time of the attack that O'Keefe and Watson had had an altercation one day earlier and were taking steps to segregate the two men from each other.

Movant also maintains that Watson was a gang leader of the Bloods gang at Attica, had a history of assaulting other inmates and of ordering "contracts" on other inmates and should not have been in the general population at the time of the incident.

I conclude that these allegations demonstrate that Movant's proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, supra). If the State in fact knew of the animosity between O'Keefe and Watson, it reasonably could have foreseen that an attack on O'Keefe might occur and that bystanders like Movant could be injured in the course of that attack. If the State failed to act reasonably to prevent a foreseeable violent confrontation, it could be liable to Movant for injuries that resulted from it. The State could also be liable if, as Movant alleges, Watson had been involved in an ongoing pattern of violent assaults (Littlejohn v State of New York, 218 AD2d 833, 834, supra). Since the claim appears to have merit, the fourth factor weighs in favor of permitting the late claim.

I also conclude that there is no other remedy available to Movant. No civil action may be brought in New York State courts against officers or employees of the Department of Correctional Services (DOCS) for acts or omissions in the course of their employment (Correction Law §24[1]). Moreover, Movant can no longer bring an action against those individuals in federal court alleging that they violated his Eighth Amendment rights (see, 42 USC §1983). Such a claim would be governed by the three-year limitation of CPLR 214 and would now be untimely (Lopez v Shaughnessy, 260 AD2d 551). Even if Movant could bring such a claim, however, he would need to prove that DOCS' officers and employees acted with "deliberate indifference" to his safety (see, Hayes v New York City Department of Corrections, 84 F3d 614, 620 [2d Cir 1996]). Negligence, which is what Movant alleges here, would not suffice (Hayes v New York City Department of Corrections, supra). Therefore, the sixth factor favors Movant.

Since all of the statutory factors, with the exception of a reasonable excuse for the delay, weigh in favor of letting Movant file his claim, I conclude that his motion should be granted. Movant shall complete the service and filing of his proposed claim in accordance with the provisions of the Court of Claims Act within thirty days after this order is served upon his attorney by the Clerk of the Court.

June 29, 2000
Rochester, New York

Judge of the Court of Claims