New York State Court of Claims

New York State Court of Claims

RIVERA v. THE STATE OF NEW YORK, #2000-019-544, Claim No. NONE, Motion No. M-62444


Claimant's motion for permission to file a late claim arising from an inmate-on-inmate assault is denied.

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:
BY: Earl F. Gialanella, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 24, 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-62444, filed September 26, 2000.
  2. Affidavit of Raymond Rivera, in support of motion, sworn to August 10, 2000, with attachments.
  3. Proposed Claim, sworn to September 12, 2000.
  4. Affirmation of Earl F. Gialanella, AAG, in opposition to motion, dated November 8, 2000 and filed November 13, 2000, with attached exhibits.
  5. Affidavit of James Sabatini, in support of motion, sworn to November 7, 2000.

Claimant, by way of his proposed claim, avers the State of New York (hereinafter "State") was negligent in failing to prevent an assault upon him on February 8, 2000. Claimant recounts that he was assaulted and stabbed by several inmates[1] while in the field house/gym area watching television at Elmira Correctional Facility (hereinafter "Facility"). Claimant avers the State was negligent in its duty to protect him because "[t]he chair where the officer was supposed to be posted was empty"; "[b]y taking their 'break' the officers neglected their duties"; and "[t]here are numerous incidents that take place in the fieldhouse [sic] area of the prison, if not 'daily'." (Proposed Claim, ¶ ¶ 4, 6 & 7).

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.

Claimant offers multiple excuses for his delay in filing the claim, namely ignorance of the service and filing requirements of the Court of Claims; medical incapacitation following his assault; and inability to access the Facility law library due to confinement in the special housing unit. First, 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). Second, Claimant did not submit a physician's affidavit to substantiate his claim of medical incapacity through the statutory period. (Cabral v State of New York, 149 AD2d 453). Third, this is not the proper forum to second-guess the Facility's "call out" procedure regulating transfers between the special housing unit and the law library. In short, Claimant has failed to offer a valid excuse for his delay in filing this claim.

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 is that the State obtained actual notice of the essential facts from the actual investigation conducted following this assault. The State's response on these issues is limited to the statement that while correction officers may have responded to the incident, "[t]he defendant was not placed on notice that there would be a subsequent allegation alleging negligent supervision." (Affirmation of Earl F. Gialanella, AAG , ¶ 5). Quite to the contrary on the issue of notice, it is well-settled that only notice of the essential facts constituting the claim are necessary rather than notice of 'possible litigation'. (Matter of Crawford v City Univ. of N.Y., 131 Misc 2d 1013, 1015). The State's argument that there was no opportunity to investigate in light of the internal post-incident reports is disingenuous at best. In light of the foregoing, there can be no substantial prejudice to the State if the requested relief is granted. The Court finds that these factors weigh in Claimant's favor.

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, Claimant must 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, at 11). Generally, absent any notice of foreseeable harm to Claimant, unremitting supervision is unnecessary. (Colon v State of New York, 209 AD2d 842, 843). 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). Claimant has not offered any evidence that would tend to establish that his assault falls within any of these scenarios. Even accepting Claimant's contentions that there were daily assaults in the field house/gym area, such allegations do not put the State on notice that this Claimant was known to be at risk, or that these particular assailants were particularly likely to attack other inmates.[2]

Additionally, Claimant argues correction officers were not properly posted at the time of his attack. Generally, the mere fact that a guard may not have been present at a particular location is insufficient to support a finding that the State failed to exercise reasonable care, absent a showing that officials had notice of an "especially dangerous situation" at that site. (Padgett v State of New York, 163 AD2d 914, 915, lv denied 76 NY2d 711). In any event, Claimant's allegations of numerous prior attacks at this location are wholly unsupported by this record. Moreover, the State refutes this assertion with the affidavit from Officer Sabatini who avers that officers are not directed or instructed to remain idle or stationary while patrolling the field house since it would be inconsistent with effective security. (Sabatini Affidavit, ¶ 7). Consequently, the Court finds this proposed claim fails to set forth sufficient allegations establishing merit.

Finally, the State argues Claimant has an alternate remedy by suing his attacker individually. While true, the adequacy of an alternate remedy may be considered. (Epstein v State of New York, 88 AD2d 967). Considering the identification of the inmate or inmates who allegedly assaulted Claimant is unclear from this record, the Court will weigh this factor in Claimant's favor.

Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the Court finds that while four of the six factors weigh in favor of Claimant, the all-important factor of merit weighs against Claimant and cannot be overlooked. The Court will not allow a claim that does not appear to be meritorious to proceed.

In view of the foregoing, IT IS ORDERED that Claimant's motion for permission to late file, Motion No. M-62444, is DENIED.

November 24, 2000
Binghamton, New York

Judge of the Court of Claims

From this record, it is unclear whether Claimant was attacked by one or more inmates.
Claimant does not identify his attacker(s), although the State papers do include the name of the suspect.