New York State Court of Claims

New York State Court of Claims

FUENTES v. THE STATE OF NEW YORK, #2000-017-702, Claim No. 101168, Motion Nos. M-60816, CM-61204


The Court granted defendant's motion to dismiss the Claim as untimely served and

granted claimant's cross motion for leave to late file the Claim which alleges an assault by a

fellow inmate.

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:
Andrew F. Plasse, Esq.
Defendant's attorney:
Hon. Eliot Spitzer
Attorney General of the State of New YorkDewey Lee, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 15, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 through 3, were read and considered by the Court on

defendant's motion to dismiss the claim and on Claimant's cross motion for leave to file a late

Claim or to deem the Notice of Intention the Claim:

Notice of Motion, Affirmation and Exhibits.............................................1

Notice of Cross-Motion, Affirmation, Exhibits and Fuentes Affidavit................................................................................................2

Affirmation in Opposition..........................................................................3

The above-referenced Claim alleges that the State was negligent in failing to prevent an assault on claimant by fellow inmates while he was incarcerated at the Downstate Correctional Facility. Defendant seeks dismissal of this Claim on the ground that since no proper Notice of Intention has been served the Claim, which was filed approximately two years after its accrual, was not filed in a timely manner .

The papers submitted on this motion establish that claimant improperly served a Notice of Intention to file a Claim in this matter on the Attorney General on October 15, 1997 by regular mail (see, Court of Claims Act §11[a]) and that a second Notice of Intention was properly served on November 3, 1997 by certified mail, return receipt requested, but was jurisdictionally defective in that it failed to provide the time or place of the occurrence alleged (see, Court of Claims Act § 11[b]). Claimant concedes that these Notices of Intention were defective for the above reasons and thus that the Claim filed in this matter on September 30, 1999 was untimely. Accordingly, the Court GRANTS defendant's motion to dismiss Claim No. 101168.

Given the foregoing, claimant now cross-moves for permission to file a late Claim in this matter pursuant to Court of Claims Act § 10(6), or, in the alternative, to treat the timely-served Notice of Intention as a Claim pursuant to Court of Claims Act §10(8)(a). As a preliminary matter, since the Notice of Intention that was served on November 3, 1997 failed to specify the time and location of the alleged assault, that Notice does not contain facts sufficient to constitute a claim (see, Court of Claims Act §11[b]). Thus, claimant has not met the statutory prerequisites for relief pursuant to Court of Claims Act §10(8)(a).

The only relief available to claimant is a motion for permission to file a late claim pursuant to Court of Claims Act §10(6). That statute permits this Court to grant such permission upon consideration of the following six factors, as well as others deemed relevant by the Court: (1) whether the delay in filing the claim is 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 has the appearance of merit; (5) whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has any other available remedies. The analytical process to be engaged in by the Court involves a weighing of all of these factors, and the presence or absence of any one factor is not determinative (Bay Terrace Coop.
Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys.
, 55 NY2d 979, 981)
Claimant's failure to proffer a reasonable excuse for the delay in filing weighs against a grant of leave in this case (see, Edens v State of New York, 259 AD2d 729, 730). However, as defendant concedes, the State had notice of the essential facts underlying the claim and an opportunity to investigate them, given that claimant was issued an Inmate Misbehavior Report in connection with the fight that arose from the alleged assault and that a disciplinary hearing was held in this matter shortly thereafter. Given this notice, as well as the fact that claimant served the Attorney General with two Notices of Intention, although defective, within thirty days of the alleged assault, the Court finds that defendant would not be substantially prejudiced by a grant of permission to file a late claim in this matter. The Court also finds that claimant would not have an adequate alternative remedy to suit in this Court.

The remaining factor to consider is whether the claim appears to be meritorious within the meaning of Court of Claims Act §10(6). In assessing whether a claim has the appearance of merit, the Court considers whether the papers submitted establish reasonable cause to believe a valid claim exists (see, Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11). As a general proposition, a claim of negligence against the State arising from an inmate assault on another inmate may be predicated on one of the following three grounds: (1) the victim was a known risk and the State failed to provide reasonable protection (see, Sebastiano v State of New York, 112 AD2d 562); (2) the State had notice that the assailant was particularly prone to committing such an assault and failed to take proper precautionary measures (see, Littlejohn v State of New York, 218 AD2d 833); or (3) the State had ample opportunity to intervene in the assault but failed to act (see, Huertas v State of New York, 84 AD2d 650).

Here, claimant alleges in his proposed claim that the State was negligent in failing to prevent an attack on claimant by placing him in the general population at Downstate when he was previously housed in protective custody and by failing to take proper precautions where it had notice that the assailants were prone to commit such an attack. In a supporting affidavit, claimant alleges that he should have been segregated from these three assailants because he had previously been housed in protective custody and because, "upon information and belief," the assailants were listed on his enemies list. The Court finds on these submissions for the purposes of this application that claimant has met the threshold for establishing that his claim has the appearance of merit. Of course, a greater burden rests upon claimant to establish the merit of his claim at trial. Given that claimant does not appear to have any other adequate avenue of redress for his injuries arising from this incident, and that a majority of the factors considered by this Court weigh in claimant's favor, this cross-motion to file a late claim is hereby GRANTED.

Accordingly, claimant is directed to file and serve the proposed Claim in compliance with this decision and the provisions of the Court of Claims Act within thirty (30) days of receipt of a filed copy of this Decision and Order, and defendant shall thereafter have the time prescribed by law to file and serve an answer.

May 15, 2000
White Plains, New York
Judge of the Court of Claims