New York State Court of Claims

New York State Court of Claims

NARVAEZ v. THE STATE OF NEW YORK, #2000-015-084, Claim No. 102482, Motion Nos. M-61887, M-62000


Synopsis


Claimant's proof of notice of anticipated assault sufficient to create question of fact precluding defendant's motion for summary judgment. Copy of return receipt demonstrating service on the office of the Attorney General sufficient to deny defendant's motion to dismiss for untimeliness.

Case Information

UID:
2000-015-084
Claimant(s):
FRANKLIN NARVAEZ
Claimant short name:
NARVAEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102482
Motion number(s):
M-61887, M-62000
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Franklin Narvaez, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
September 19, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The motion of the defendant for an order granting it summary judgment dismissing the claim for failure to state a cause of action and for lack of personal jurisdiction is denied. The motion of the claimant for an order granting him poor person status is also denied. This is a claim by a pro se inmate alleging that he sustained personal injuries when he was attacked by fellow inmates at approximately 10:00 a.m. on January 4, 1999 in the C-2 housing unit of the Marcy Correctional Facility. The claim alleges that a notice of intention to file a claim was filed with the Attorney General's office on February 24, 1999.

Although the notice of motion for dismissal refers to CPLR 3211, defense counsel has requested that the motion be accorded summary judgment treatment. In view of the fact that issue has been joined by the service of an answer, summary judgment treatment is appropriate.

Defendant's first argument in support of dismissal is that the claim was not timely pursued as neither a notice of intention to file a claim nor a claim was served upon the Attorney General within 90 days of accrual. In opposing the motion, claimant has submitted a copy of his notice of intention to file a claim, an affidavit of service stating that the notice of intention was sent to the Attorney General on February 18, 1999, a copy of claimant's United States Postal Service receipt for certified mail, and a copy of a return receipt showing that an article addressed to the Attorney General was received by certified mail, return receipt requested, on February 24, 1999. In the Court's view, by producing the signed return receipt, the claimant has established that the notice of intention to file a claim was properly served upon the Attorney General and received by him within 90 days of the accrual of the claim (see, Commack Self- Service Kosher Meats v State of New York, 270 AD2d 687, 704 NYS2d 737).

The second argument in support of dismissal is that the claimant has failed to raise an issue of fact upon the question of whether the State had notice of a potential assault upon claimant sufficiently in advance thereof to have taken reasonable steps to prevent the assault. In opposition to the motion, the claimant alleged in his affidavit that he had requested protection and attached as Exhibit "B" thereto a letter dated December 25, 1998 addressed to a Sergeant Dryman stating:
Sgt. Dryman I write this lines to respectfully request protection because I'm being threaten by the Blood gang. Please come soon an give me protective custody. [sic]
The above quoted letter raises a triable issue of fact precluding summary judgment upon the issue of whether employees of the Department of Correctional Services had notice of a potential assault sufficiently in advance thereof to take action to prevent it (see, Kemp v Waldron, 125 Misc 2d 197, affd 115 AD2d 869).

With respect to the motion for poor person status, CPLR § 1102 provides that the potential privileges of a poor person include the assignment of counsel, a free stenographic transcript in the event of an appeal, and non-liability for the payment of any costs or fees. Here, the issue of whether claimant will be responsible for the payment of any costs or fees was addressed in the order of Presiding Judge Susan Phillips Read dated June 20, 2000. The claimant does not request the assignment of counsel in his motion papers and therefore the Court does not address the appropriateness of that relief.

Finally, the issue of whether claimant should be given a free stenographic transcript in the event of an appeal is premature at this juncture.


September 19, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Order of Presiding Judge Susan Phillips Read dated June 20, 2000;
  2. Notice of motion for permission to proceed as a poor person dated April, 2000;
  3. Affidavit of Franklin Narvaez sworn to May 14, 2000;
  4. Affirmation in opposition to poor person status of G. Lawrence Dillon dated June 23, 2000;
  5. Notice of motion to dismiss dated July 3, 2000;
  6. Affirmation of G. Lawrence Dillon dated July 3, 2000, with exhibits;
  7. Affidavit in opposition of Franklin Narvaez sworn to July 25, 2000, with exhibits.