New York State Court of Claims

New York State Court of Claims

BEASLEY v. New York, #2000-019-509, Claim No. None, Motion No. M-61178


Claimant was granted permission to file a late claim against the State for the negligent hiring, supervision and training of a State correction officer who shot Claimant while he was off-duty.

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Signature date:
April 4, 2000

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Claimant moves for the second time for permission to file a late claim pursuant to the Court of Claims Act (hereinafter "CCA") 10 (6).

The Court has considered the following papers in connection with this motion:
  1. ORDER, Ct Cl., October 15, 1999, Lebous, J., Claim No. None, Motion No. M-59979.
  1. Notice of Motion No. M-61178, dated January 24, 2000 and filed February 7, 2000.
  2. Affidavit of Richard W. Berne, Esq., in support of motion, sworn to January 24, 1999, with attached exhibits.
  3. Memorandum of Law in support of motion.
  4. Proposed "NOTICE OF CLAIM".
  5. Affirmation of Grace A. Brannigan, AAG, in opposition to motion, dated March 8, 2000 and filed March 10, 2000, with attached exhibits.
  6. Reply Affirmation of Richard W. Berne, Esq., in support of motion, dated March 9, 2000.
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 [6]).

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 Auth., 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. (Id. 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 merit.[1] 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.[2] 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.[3] Mr. 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 privileges.[4] (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, affd 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, supra, 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, neither Haddock nor Wyatt support the State's position given the facts of this case.[5]

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 follows:
[t]he question is not whether the subject [second] incident could have been prevented as such, but whether the Department was negligent in failing to thoroughly investigate the prior [first] incident or take any remedial action and whether such negligence was a proximate cause of claimants' injuries.

(Wyatt v State of New York, supra, 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.[6] (Marcus v State of New York, 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 and training.

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 foregoing,

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 Order.

April 4, 2000
Binghamton, New York

Judge of the Court of Claims

[1]The motion is also supported by Claimant's verified proposed claim.
[2]Understandably, the record is not fully developed on this issue in light of the preliminary stage of this matter.
[3]Mr. Centano testified the incident occurred in either 1994 or 1995.
[4]It is unclear if this incident occurred during his probationary period or what impact, if any, DOCS policy dictates such an incident should have had on his employment status.
[5]Claimant is correct that the State's quotation from Wyatt is misleading inasmuch as it comes from the dissenting opinion.
[6]This is not to say that upon further development of the facts after discovery the issue could not be revisited as part of a summary judgment motion.