New York State Court of Claims

New York State Court of Claims

NOLEN v. THE STATE OF NEW YORK, #2000-019-541, Claim No. 102652, Motion Nos. M-62396, CM-62553


State's dismissal motion granted due to Claimant's failure to timely serve claim; Claimant's cross-motion for permission to late file granted in part and denied in part.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):
Claimant's attorney:
THE LAMA LAW FIRM, LLPBY: Ciano J. Lama, Esq., of counsel
Defendant's attorney:
BY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 5, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


The State of New York (hereinafter "State") moves for an Order dismissing this Claim pursuant to Court of Claims Act (hereinafter "CCA") 10 and 11. Claimant opposes the motion and, in the alternative, cross-moves for permission to file a late claim pursuant to CCA 10 (6).

The Court has considered the following papers in connection with this motion:
  1. "COMPLAINT", filed June 26, 2000.
  2. "VERIFIED ANSWER", filed July 20, 2000.
  3. "VERIFIED AMENDED CLAIM", filed August 14, 2000.
  4. Notice of Motion No. M-62396, dated September 15, 2000, and filed September 18, 2000.
  5. Affirmation of James E. Shoemaker, AAG, in support of motion, dated September 15, 2000, with attached exhibits.
  6. "AFFIRMATION IN OPPOSITION TO DEFENDANTS MOTION TO DISMISS AND APPLICATION FOR LEAVE TO FILE LATE NOTICE OF INTENTION", Cross Motion No. CM-62553, of Ciano J. Lama, Esq., in support of cross-motion and in opposition to motion, dated October 9, 2000, and filed October 10, 2000, with attached exhibits.
  7. Proposed "NOTICE OF CLAIM", sworn to September 10, 2000.
  8. Affirmation of James E. Shoemaker, AAG, in opposition to cross-motion, dated November 6, 2000, and filed November 8, 2000, with attached exhibit.
Claimant seeks permission to file a late claim relative to three separate incidents that occurred during his incarceration by the State. Claimant alleges the first two incidents came about when his cell at the Clinton Correctional Facility was set afire and burglarized at the behest of correction officers on March 26, 1999 and April 15, 1999. The third incident involved an attack on Claimant by two other inmates at the Elmira Correctional Facility on June 22, 1999.

On September 15, 1999, Claimant mailed a "Notice of Claim" regarding these three incidents to the respective superintendents at the Elmira Correctional Facility and the Clinton Correctional Facility. Next, an unverified Claim (actually designated as a "Complaint") dated June 6, 2000 was served on the Attorney General's office on June 15, 2000 and filed in the Office of the Clerk on June 26, 2000. This Claim referenced only the alleged assault of June 22, 1999. The State's Verified Answer was filed on July 20, 2000. Soon thereafter, Claimant filed a "Verified Amended Claim" in the Office of the Clerk on August 14, 2000 and served the Attorney General's office by regular mail on August 15, 2000.[1]

I. State's dismissal motion

The State moves for dismissal on the grounds this Court lacks jurisdiction because the claim was not filed and served within ninety days of accrual nor was a notice of intention properly served within ninety days of accrual. The "Notice of Claim" was mailed to the Elmira Correctional Facility and Clinton Correctional Facility, but never served on the Attorney General's office. It is a fundamental principle of practice in the Court of Claims that the filing and service requirements contained in CCA 10 and 11 are jurisdictional in nature and must be strictly construed and, as such, service upon correctional facilities does not comply with the mandates of CCA 10 and 11. (Finnerty v New York State Thruway Auth., 75 NY2d 721, 722-723). With respect to the Claim itself, it was not served upon the Attorney General's office until June 15, 2000 and filed until June 26, 2000, both of which are more than one year from the assault of June 22, 1999.

Claimant has failed to come forward with any proof establishing proper and timely service in compliance with CCA 10 & 11 as is his burden. (Boudreau v Ivanov, 154 AD2d 638, 639). From this record, it is clear that Claimant did not serve a notice of intention on the Attorney General's office nor file and serve a Claim within ninety days from accrual. In view of the foregoing, this Court lacks subject matter jurisdiction over this Claim and the State's motion should be granted and Claim No. 102652 dismissed. Claimant may not be without a remedy, however, since he cross-moved for permission to file a late claim.

II. Claimant's Cross-Motion for Permission to Late File

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

It is well-settled that the factors a 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.

Claimant's excuse for his delay in requesting this relief is that his incarceration prevented him from securing counsel, as well as his fear of retribution. The Court finds these excuses to be without merit and weighs this factor 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. These three incidents involved either a fire or an inmate assault each of which were of a serious enough nature to prompt internal investigations and reports within the respective facilities. Furthermore, the State does not deny the occurrence of any of these incidents. As such, this Court finds that the defendant had actual notice of each incident and thus an opportunity to investigate these matters. Additionally, the State has not convinced this Court that it would suffer substantial prejudice if the requested relief were granted. In addition, no alternative remedy appears available to Claimant. Consequently, these four factors weigh in Claimant's favor.

The most decisive component in determining a motion under CCA 10 (6) is whether the proposed claim appears to be meritorious, 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, 10). Claimant must establish 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, at 11). Generally, in reviewing the allegations in the proposed claim[2] any "[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 [citations omitted]." (Sessa v State of New York, 88 Misc 2d 454, 458, affd 63 AD2d 334, affd 47 NY2d 976). Here, the issue of merit must be addressed separately for each of the three incidents.

Assault of June 22, 1999

The State points out that there is no supporting affidavit from the Claimant himself detailing this assault. However, Claimant verified the Amended Claim which does contain adequate detail regarding the assault. Claimant's cause of action relative to this inmate assault appears based upon negligence. As such, in order to prevail at trial, Claimant must establish the State failed to provide adequate supervision to prevent foreseeable risks of harm. (Colon v State of New York, 209 AD2d 842, 843). Generally, the State may be held liable for an inmate on inmate assault if: (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 act. (Sebastiano v State of New York, 112 AD2d 562; Littlejohn v State of New York, 218 AD2d 833; Huertas v State of New York, 84 AD2d 650). With respect to the State's knowledge that Claimant was known to be at risk, Claimant's Verified Amended Claim does allege "[t]hat referrals had been made to place plaintiff in Involuntary Protective Custody." (Verified Amended Claim, ¶ 23). The State does not deny or contradict this factual allegation so the Court will accept it as true for the purposes of this motion. Accordingly, the allegations of negligence arising from the assault of June 22, 1999 appear to be meritorious.

Fires of March 26, 1999 and April 15, 1999

Claimant's proof of merit on the alleged involvement in these fires by correction officers includes: (1) an affidavit of another inmate, Frank Nicchio; and (2) a statement that "[u]pon information and belief, pursuant to a report prepared by the New York State Inspector General, both fires were the result of corrections staff coercing other inmates to carry out the arson." (Notice of Claim, ¶ 3). Initially, the Court notes the actual occurrence of these fires is not disputed, rather only the involvement of correction officers. The Affidavit of inmate Frank Niccio avers, in pertinent part, as follows:

1. That I witnessed an inmate set another Inmates cell on fire after being paid by an officer to set it on fire on 4-15-99

2. That the officer has since been suspended

3. That this was done because the inmate has taken legal action against officers here at Clinton.

(Affirmation of Ciano J. Lama, Esq., Exhibit 5).

In this Court's view, this affidavit is ambiguous. For instance, does the first paragraph mean Mr. Niccio merely witnessed another inmate setting the cell on fire (which is not disputed by the State) or did he witness an officer actually paying the inmate to set the fire? Moreover, was the allegedly involved officer actually suspended and, if so, why? There must be more than these vague statements. Also contributing to the ambiguity here is the lack of facts from Claimant himself on these incidents.[3] The only document signed by Claimant relative to the fires are the "Notices of Claim" which do not contain any factual allegations about these incidents other than a statement based upon information and belief relative to the inspector general's report. With respect to that inspector general's report, since the same was not submitted,[4] the Court cannot even be certain of its existence or, if it does exist, whether the report factually favors either party. Consequently, the Court finds the proof submitted by Claimant attempting to establish the involvement of corrections officers with these fires to be speculative and conclusory at this stage but will permit Claimant to reapply on proper papers. Accordingly, the Court finds that the factor of merit weighs against Claimant with respect to any cause of action relative to the fires of March 26, 1999 and April 15, 1999 without prejudice.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds the following:

(1). Regarding the claim arising from the assault of June 22, 1999, five of the six factors, including the all important factor of merit, weigh in favor of granting Claimant's cross-motion; and

(2). Regarding any claim arising from the fires of March 26, 1999 and April 15, 1999, two of the six factors, including the all important factor of merit, weigh against granting Claimant's cross-motion without prejudice to reapply upon proper papers.

Accordingly, for the reasons stated above, it is ORDERED that the State's motion to dismiss, Motion No. M-62396, is GRANTED and Claim No. 102652 hereby is DISMISSED, and

IT IS FURTHER ORDERED, that Claimant's Cross-Motion No. CM-62553 for permission to allow the late filing and service of a claim is GRANTED IN PART and DENIED IN PART in accordance with the foregoing. Claimant shall file a 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 proposed claim should include only the claim of negligence relative to the assault of June 22, 1999. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court.

December 5, 2000
Binghamton, New York

Judge of the Court of Claims

The Verified Amended Claim added some allegations relative to the theory of liability, as well as a verification by Claimant.
The Court is treating the pre-existing, though now dismissed, claim as the proposed claim. (Syndicate Bldg. Corp. v City Univ. of N.Y., 151 Misc 2d 492, 495 n 2). Although the State raised this issue in opposition it proceeded to contest the motion on the merits.
While the Court accepted the pre-existing but now dismissed verified claim on the assault cause of action, that claim contained no factual allegations relating to the fires.
Parenthetically, the Court notes that the inspector general's report is likely not discoverable in any event. (Lowrance v State of New York, 185 AD2d 268).