The following papers were read on Claimant's application for permission to file
a late Claim pursuant to Court of Claims Act § 10 (6):
1. Motion for Permission to File A Late Claim of Hector Rodriguez, pro se, with
exhibits filed December 9, 2005;
2. Affirmation in Opposition of Joseph F. Romani, AAG filed January 9,
Filed Papers: Claim No. 111309 filed August 29, 2005; Verified Answer filed
September 26, 2005.
Claimant, an inmate appearing pro se, moves for permission to file a late Claim
pursuant to Court of Claims Act (hereinafter "CCA") § 10 (6). The State of
New York (hereinafter "State") opposes the motion.
The proposed Claim alleges Claimant was assaulted by an unknown inmate in the
rear stairwell in G-Block in Elmira Correctional Facility (hereinafter "Elmira")
on March 28, 2005, at approximately 4:32 p.m., while returning from recreation
with approximately 50 other inmates. More specifically, Claimant alleges he was
slashed with a razor type weapon on his face resulting in a 1" cut which was
later closed with surgical glue. The records submitted by Claimant indicate
that he did not personally report the attack, but rather that his wound was
discovered by a correction officer making rounds soon after the incident.
Additionally, the records submitted reveal that although Claimant refused
voluntary protective custody he was placed in involuntary protective custody.
The proposed Claim alleges the State's failure to "[p]ost an employee or other
form of security in G-Block's rear stairwell at Elmira, thus, permitting a
'blind spot' within G-Block's rear stairwell to be an unsafe and dangerous
environment during the movement of inmates returning from recreation"
(Proposed Claim, ¶ 4; emphasis added).
Claimant served a Notice of Intention on the Office of the Attorney General on
June 28, 2005 by certified mail, return receipt requested (Claimant's Ex B).
Claimant then served a Claim regarding this incident upon the Office of the
Attorney General on August 26, 2005 and filed said Claim with the Clerk of the
Court on August 29, 2005. Said Claim was designated as Claim No. 111309. The
State filed a Verified Answer on September 26, 2005 which contained
jurisdictional affirmative defenses including Claimant's failure to comply with
CCA §§ 10 and 11.
Before proceeding to the Claimant's late filing motion, the Court will first
address Claim No. 111309. This Claim accrued on March 28, 2005 and, as such,
the end of the 90 day statutory period was Sunday, June 26, 2005, which was
extended to Monday, June 27, 2005 pursuant to General Construction Law §
25-a. Claimant has essentially conceded untimely service of his Notice of
Intention and Claim, but argues that the State should be equitably estopped from
raising the issue of untimeliness because he delivered his Notice of Intention
to prison officials on June 21, 2005 with six days remaining in his 90 day
statutory period, but prison officials did not post his mail until several days
later on June 24, 2005. Thus, the Notice of Intention received on June 28, 2005
was untimely absent the application of estoppel.
It is well-settled that defects in mailing by an inmate can result in an
estoppel, upon proper proof, if the State is the cause of the delay (Rivera v
State of New York, 5 AD3d 881; Wattley v State of New York, 146 Misc
2d 968). In this Court's view, however, Claimant has failed to set forth
sufficient proof warranting the application of estoppel in this instance. There
is nothing in Claimant's papers that allege that prison officials did not follow
procedure in processing Claimant's mail request. Moreover, the Court notes that
it was Claimant's responsibility to allow enough time for potential trouble in
the processing of his legal mail knowing the intricacies of the prison mail
system. The difficulties encountered by Claimant only serve to demonstrate the
wisdom behind the adage "leave time for trouble" (Siegel, NY Prac §§
33 & 231A [4th ed]). In any event, it is a fundamental principle of
practice in the Court of Claims that the filing and service requirements
contained in the Court of Claims Act are jurisdictional in nature and must be
strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721,
722-723). The Court is without discretion to waive these requirements.
Consequently, the Court, sua sponte, dismisses Claim No. 111309 for lack of
Turning to Claimant's late filing motion, as a threshold matter the Court notes
that it has the jurisdiction to review and determine this motion, since it was
filed within the three year time period applicable to negligence actions which
is the comparable time period for bringing similar actions against a citizen of
the state (CCA § 10 ; CPLR 214).
The substantive 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
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.
The first factor that should be addressed is whether the proposed Claim appears
meritorious since it has been characterized as the most decisive component in
determining a motion under CCA § 10 (6) and 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). With respect to inmate-on-inmate assaults, such
as here, it is well-settled that in order to prevail at trial, Claimant would
need to demonstrate one of the following: (1) the State knew or should have
known that Claimant was at risk of being assaulted and yet failed to provide
reasonable protection; (2) the State knew or should have known that the
assailant was prone to perpetrating such an assault and the State did not take
proper precautionary measures; or (3) the State had ample notice and opportunity
to intervene but did not act (Sanchez v State of New York, 99 NY2d 247).
As such, the Court's function on this late filing motion is to determine whether
the proposed Claim appears to fall within one of these parameters
(Santana, 92 Misc 2d at 11-12).
First, the Court notes that the State does not dispute any of Claimant's
factual allegations with an affidavit from anyone with personal knowledge of
this incident (Matter of Powell v State of New York, 187 AD2d 848).
Thus, the facts alleged in Claimant's papers will be deemed true for purposes of
this motion (Sessa v State of New York, 88 Misc 2d 454, 458, affd
63 AD2d 334, affd 47 NY2d 976).
The Court finds that the proposed Claim appears meritorious on the issue of
whether the State knew or should have known that Claimant was at risk of being
assaulted and yet failed to provide reasonable protection. More specifically,
the Court notes that Claimant's "Involuntary Protective Custody Hearing
Determination" states the following reason for his placement: "[r]eason for
recommendation for involuntary protective custody is the fact that substantial
evidence exists to show that this inmate must [be] restricted from gen.
population for his own safety" (Claimant's Exhibit C, p 6; emphasis in
original). The Court finds that this statement that "evidence exists" of a risk
to Claimant raises the question of whether such evidence existed and was known
or should have been known by the State prior to this attack. Moreover, the
Court notes that this incident occurred during the movement of inmates which has
been acknowledged as a time of elevated risk (Sanchez, 99 NY2d at 255).
Consequently, the Court finds the factor of merit weighs in favor of granting
With respect to the remaining factors, Claimant argues that his delay is
excusable because it was prison officials who delayed the processing of his
legal mail as described hereinabove.
The Court finds that Claimant has failed to establish his delay was excusable
for the same reasons set forth above in rejecting Claimant's estoppel argument
(Matter of Santana v New York State Thruway Auth., supra at pp 2-3).
This factor weighs against Claimant.
The next three factors are notice of the essential facts, opportunity to
investigate, and lack of substantial prejudice. The State concedes that these
three factors are not in issue (Affirmation of Joseph F. Romani, AAG, ¶ 5).
As such, the Court finds these three factors favor Claimant.
The final factor is the availability of any alternate remedy. Claimant asserts
that no alternate remedy is available, while the State does not address this
factor. Having been presented with no viable alternate remedy, the Court finds
this factor weighs in favor of Claimant.
Consequently, 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's request for
permission to file a late Claim pursuant to CCA § 10 (6).
In view of the foregoing, IT IS ORDERED that Claimant's motion for permission
to late file a Claim, Motion No. M-71057, is GRANTED. Claimant shall file a
Claim with the Clerk of the Court and serve a copy of the Claim upon the
Attorney General within sixty (60) days from the date of filing of this Decision
and Order. The service and filing of the Claim shall be in conformity with all
applicable statutes and rules of the Court with particular reference to CCA
§ 10, 11 and 11-a; and
IT IS FURTHER ORDERED that the Court, sua sponte, dismisses Claim No. 111309
based upon a lack of jurisdiction.