New York State Court of Claims

New York State Court of Claims

BANKS v. THE STATE OF NEW YORK, #2000-019-529, Claim No. NONE, Motion No. M-61946


Court granted Claimant permission to file a late claim arising from an inmate-on-inmate assault

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:
Third-party defendant's attorney:

Signature date:
August 7, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant seeks permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6).

The Court has considered the following papers in connection with this motion:

  1. Notice of Motion No. M-61946, dated June 19, 2000 and filed July 3, 2000.
  2. Affidavit of Martin Banks in support of motion, dated June 20, 2000.
  3. Proposed Claim.
  4. Affirmation of Glenn C. King, Staff Attorney, in opposition to motion, dated June 30, 2000 and filed July 5, 2000.
  5. Reply Affirmation of Martin Banks in support of motion, dated July 7, 2000 and filed July 12, 2000.
Claimant, by way of his proposed claim, avers he was assaulted and stabbed by another inmate while in the law library at Shawangunk Correctional Facility (hereinafter "Facility") on December 23, 1999. Claimant avers the State of New York (hereinafter "State") had notice of the attacker's propensity for violence from two separate sources, namely (1) the attacker's suspicious behavior in the law library several days earlier which resulted in a Facility search of the attacker and law library and (2) a letter sent to Facility officials on December 16, 1999, advising of mounting tension in the Facility's law library. Claimant asserts, among other things, the Facility search should have uncovered the weapon his attacker had hidden in the library which was later used to assault Claimant.

As a threshold issue, the Court notes that it has jurisdiction to review and determine this motion since it was filed within three years from the date the claim accrued.

The factors that the Court must consider in determining a properly framed CCA 10 (6) motion are whether:

1. the delay in filing the claim was excusable,

2. the State had notice of the essential facts constituting the claim,

3. the State had an opportunity to investigate the circumstances underlying

the claim,

4. the claim appears to be meritorious,

5. 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. there is any other available remedy.

Whether the proposed claim appears meritorious has been characterized as 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, it is Claimant's burden to show the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists. (Matter of Santana v New York State Thruway Auth., supra, 92 Misc 2d, at 11). To be successful at trial based on an inmate-on-inmate assault, Claimant will need to establish one of the following scenarios: (1) the victim was a known risk and the State failed to provide reasonable protection; (2) the State had notice that the assailant was particularly prone to perpetrating such an assault and failed to take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene and failed to do so. (Sebastiano v State of New York, 112 AD2d 562; Littlejohn v State of New York, 218 AD2d 833; Schittino v State of New York, 262 AD2d 824, lv denied 94 NY2d 752). The facts as alleged by Claimant fall within these parameters.

The State's opposition on the issue of merit is limited to the following statement:

[a]dmittedly, much of what movant states in his claim is sufficient on its face to create an issue with regard to whether movant has met his burden. It is the position of the defendant that movant's burden would properly be met by including some documentary evidence to support his bare allegations.

(Affirmation in Opposition, ¶ 12). However, the State does not dispute any of Claimant's factual averments. It is well-settled that "[f]acts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). As such, in view of the fact the State did not contradict any of the facts set forth by Claimant, there is no need for Claimant to produce documentary evidence to support undisputed allegations. (Calzada v State of New York, 121 AD2d 988; Matter of Powell v State of New York, 187 AD2d 848). Consequently, the Court finds this claim appears to be meritorious.

Claimant's excuse for his delay in filing the claim is twofold, namely medical incapacitation following his assault and unawareness of the service and filing requirements contained in the CCA. Ignorance of the law, even for pro se litigants, is not an acceptable excuse. (Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654). Furthermore, Claimant did not submit a physician's affidavit in order to substantiate his claim of medical incapacity through the statutory period. (Cabral v State of New York, 149 AD2d 453). This factor weighs against Claimant.

Notice of the essential facts, opportunity to investigate and lack of substantial prejudice comprise the next three factors and may be considered together since they involve analogous considerations. The crux of Claimant's argument, albeit less than artfully pled, is that the State obtained actual notice of the essential facts from the actual investigations which preceded and followed this assault including the State's firsthand involvement in the emergency response, medical and otherwise, necessitated by the assault. Furthermore, Claimant indicates an inability to submit any documentation because the Facility has ignored his freedom of information requests. The State's response on these issues is limited to the statement "[i]f such an investigation took place, then the State would have notice of the essential facts and an opportunity to investigate, however, movant provides no documentary evidence to support his assertion that an investigation did, in fact, take place." (Affirmation in Opposition, ¶ 11). The Court finds the State's response disingenuous. The State does not dispute the assault actually occurred and, as such, the Court is willing to accept that a Facility investigation was undertaken. The State cannot sit back at this stage and submit an affidavit from someone without personal knowledge of the facts as a method of denying the obvious. (Matter of Powell v State of New York, supra, 187 AD2d, at 848-849). In light of the fact that the State has not disputed either the actual occurrence or investigation of this assault from someone with personal knowledge, there can be no substantial prejudice to the State in granting the requested relief. The Court finds that these factors weigh in Claimant's favor.

Next, Claimant avers no alternate remedy is available, whereas the State does not address this factor. Thus, this factor weighs in Claimant's favor.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that five of the six factors, including the all important factor of merit, weigh in favor of granting Claimant his requested relief.

In view of the foregoing, IT IS ORDERED that Claimant's motion for permission to late file, Motion No. M-61946, is GRANTED. Claimant shall file the proposed claim in the Office of the Clerk and serve a copy thereof upon the attorney general's office within 60 days from the date this Order is filed in the Office of the Clerk. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court.

August 7, 2000
Binghamton, New York

Judge of the Court of Claims