On October 23, 1997, Claimant was a pedestrian on an overhead, elevated
footbridge in the Bronx when he was shot by another pedestrian, one Antonio
Centano. Mr. Centano was an off-duty correction officer with the State of New
York (hereinafter "State"). At this preliminary stage, one possible
interpretation of the record leads to the conclusion that Claimant was in the
process of robbing and/or assaulting Mr. Centano at the time of the shooting.
Claimant's previous late filing motion was denied without prejudice as to a
proposed negligent hiring, supervision, and training cause of action, but denied
as to a proposed assault and battery cause of action. (Beasley v State of
New York, Ct Cl., October 15, 1999, Lebous, J., Claim No. None, Motion No.
M-59979 [hereinafter "Order"]).
As a threshold issue, the Court notes that it has continuing jurisdiction to
review and determine this motion regarding a proposed claim for negligent
hiring, training and supervision since it was filed within three years from the
date this claim accrued. (CPLR 214; CCA 10 ).
On the original motion, this Court determined that the factor of excuse weighed
against Claimant, while the factors of notice, opportunity to investigate,
prejudice, and availability of other remedies aligned in Claimant's favor. As
such, the prior Order is the law of the case relative to those factors.
However, while the prior Order found the proposed claim lacking on the issue of
merit, the motion was denied without prejudice with respect to that factor.
Accordingly, this motion will address the sole question of whether Claimant's
proposed cause of action for negligent hiring, training and supervision appears
to be meritorious.
It is well-settled the issue of merit is the most decisive component in
determining a motion under CCA § 10 (6), since it would be futile to permit
a meritless claim to proceed. (Matter of Santana v New York State Thruway
, 92 Misc 2d 1). In order to establish a meritorious claim, Claimant
must show the proposed claim is not patently groundless, frivolous, or legally
defective and there is reasonable cause to believe that a valid claim exists.
at 11). Previously, Claimant offered only the conclusory statement
the State was "negligent in hiring an individual capable of such overreaction
and vesting upon him the legal authority to carry a firearm." (Beasley v
State of New York
, Ct Cl., October 15, 1999, Lebous, J., Claim No. None,
Motion No. M-59979, p 4). Claimant now offers the non-party deposition of Mr.
Centano taken as part of a related supreme court matter as proof of
During his deposition Mr. Centano
related that he was a New York City correction officer from 1979 to 1980 which
included some weapon training. Mr. Centano stated he was laid off due to "time
abuse" from taking excessive sick time because of numerous colds. (Exhibit B to
Affidavit of Richard W. Berne, Esq., pp 23-24). After a period of unemployment,
Mr. Centano worked as a security guard for Citywide Security, also receiving
some weapons training. In 1984, Mr. Centano applied for a position as a
correction officer with the State Department of Correctional Services
(hereinafter "DOCS"). Before his employment application was approved, DOCS held
an administrative hearing of some type, the focus of which is unclear but may
have been to review the circumstances surrounding his termination by the New
York City Department of Corrections.
Thereafter, Mr. Centano was hired by DOCS for an unspecified probationary
period. Mr. Centano underwent eight weeks of training from DOCS including
weapon instruction. Mr. Centano testified he carried a weapon off-duty even
though it was considered optional. (Exhibit B to Affidavit of Richard W. Berne,
Esq., pp 39-41).
Claimant's most compelling argument for a finding of merit surrounds a prior
incident involving Mr. Centano which occurred while he was an off-duty State
correction officer on December 31, 1994.
Centano testified he was physically assaulted by several youths on that date and
pulled his weapon to scare them off, but did not fire his weapon. (Exhibit B to
Affidavit of Richard W. Berne, Esq., pp 44-45). Mr. Centano indicated he
reported this incident to his watch commander at Ossining Correctional Facility
and completed an Unusual Incident Report, as well as a police report at the
local precinct. Mr. Centano stated that DOCS did not undertake any internal
investigation or review of the incident, impose any punishment, offer any
counseling or psychological evaluation, or alter, in any way, his weapon
(Exhibit B to Affidavit of
Richard W. Berne, Esq., pp 52-53). These allegations are neither denied nor
contradicted by the State and, as such, are deemed admitted for the purposes of
this motion. (Sessa v State of New York
, 88 Misc 2d 454, 458,
63 AD2d 334, affd
47 NY2d 976).
In opposition, the State argues the doctrine of governmental immunity bars the
proposed claim for the negligent hiring, supervision and training of State
correction officers. (Affirmation of Grace A. Brannigan, AAG, ¶ 9 citing
Mon v City of New York
, 78 NY2d 309; Wyatt v State of New York
176 AD2d 574; and Haddock v City of New York
, 75 NY2d 478). However, a
governmental entity is not entitled to the protection of governmental immunity
in situations in which no discretion or judgment is exercised. (Haddock v
City of New York
, 75 NY2d, at 485). As indicated above, the
allegation that DOCS took no action whatsoever in connection with the prior
incidents is undisputed and is deemed admitted for the purposes of this motion.
As such, the applicability of Mon
to this case is uncertain. Moreover,
support the State's position given the
facts of this case.
Which brings us back to the second incident which occurred on October 23, 1997
when Mr. Centano shot Claimant. The Appellate Division, First Department, has
addressed a similar situation involving two separate incidents and observed as
(Wyatt v State of New York
, 176 AD2d 574, 575). In light
of Mr. Centano's deposition testimony, together with the uncontested allegations
that DOCS took no action after Mr. Centano's first incident, this Court finds
that there is at least a minimum amount of information to conclude the doctrine
of governmental immunity does not apply and to reasonably believe that a cause
of action exists.
(Marcus v State of New
, 172 AD2d 724 [late filing motion granted in presence of factual
dispute as to ownership of accident site]).
Finally, the State also argues the motion must fail due to Claimant's failure
to submit an affidavit from an expert. The Court disagrees. The cases cited by
the State pertain to highway design cases. While a finding of apparent merit
often requires an expert affidavit in highway negligence or medical malpractice
claims, the State points to no case law or submits any compelling reason to
extend such a requirement to proposed claims for negligent hiring, supervision
In sum, the Court now finds Claimant has established his proposed claim for
negligent hiring, supervision and training has the appearance of merit.
Consequently, in conjunction with this Court's prior Order, five of the six
factors favor granting Claimant permission to late file. In view of the
IT IS ORDERED that Claimant's motion for permission to permit the late filing
and service of a claim, Motion No. M-61178, is GRANTED. Claimant shall file a
claim in the Office of the Clerk and serve a copy of the claim upon the attorney
general on or before October 23, 2000 which is the date the underlying
limitation period expires. The service and filing of the claim shall be in
conformity with all applicable statutes and rules of the Court. Finally, the
proposed claim should be amended in accordance with this Court's prior