Notice of Motion, Attorney Affirmation, with Exhibit (Proposed Claim) 1,2
Affirmation in Opposition 3
According to the allegations set forth in the proposed claim, claimant was
convicted of the crime of forgery in the second degree, and during her period of
incarceration, participated in a program at Willard Correctional Facility from
November 9, 2000 through February 13, 2001.
During her period of confinement at Willard Correctional Facility, claimant
alleges that she was repeatedly sexually assaulted by a drill instructor at the
facility. Claimant asserts that the State was negligent in failing to provide a
secure environment in the facility, and failed to protect her from these sexual
assaults, and that it failed to properly screen, supervise, instruct and train
As set forth in the attorney's affirmation in support of this application,
claimant was apparently released to parole status on February 13, 2001.
Claimant's attorney states that he was first contacted by claimant regarding the
incidents which form the basis of this claim on June 18, 2001. This application
seeking permission to serve and file a late claim ensued.
In order to determine an application for permission to serve and file a late
claim, the Court must consider, among other relevant factors, the six factors
set forth in § 10(6) of the Court of Claims Act. The factors set forth
therein are: (1) whether the delay in filing the claim was excusable; (2)
whether the State had notice of the essential facts constituting the claim; (3)
whether the State had an opportunity to investigate the circumstances underlying
the claim; (4) whether the claim appears meritorious; (5) whether substantial
prejudice resulted from the failure to timely file a claim and the failure to
serve upon the Attorney General a timely claim or notice of intention; and (6)
whether any other remedy is available. The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim (see,
Matter of Gavigan v State of New York, 176 AD2d 1117).
A claim alleging acts of negligence against the State must be served on the
Attorney General and filed with the Clerk of the Court of Claims within 90 days
of accrual, unless a notice of intention is served upon the Attorney General
within such 90 days (Court of Claims Act, § 10). In this case, although
the specific dates of the alleged incidents are not set forth in the proposed
claim, the acts complained of allegedly occurred between November 9, 2000 and
February 13, 2001. Even if the Court considers claimant's release date of
February 13, 2001 as the accrual date of this action, claimant took no action to
pursue this claim within such 90 day period, since her first contact with her
attorney occurred on June 18, 2001. Claimant's attorney states that claimant
was in fear of losing her parole status if she pursued this claim, and therefore
did not take any action regarding this matter upon her release from Willard
Correctional Facility. While the Court can understand that claimant may have
been fearful of reprisals while incarcerated, and therefore did not take any
action regarding the alleged incidents while at Willard, the Court does not find
that these fears continued to be justified upon her release. Therefore, the
Court finds that claimant has not provided a reasonable excuse for her delay in
pursuing this claim, as she waited more than 90 days from her release before
making any attempt whatsoever to pursue her claim.
The factors of notice, opportunity to investigate, and substantial prejudice
will be considered together. In this application, claimant has provided no
information to indicate that the State either had notice or any opportunity to
investigate the circumstances underlying this claim, prior to the submission of
this motion. Defendant argues that because of the delay, it will be prejudiced
in its investigation of the claim, in that witnesses and evidence may not be
available at this point in time. As set forth previously herein, the alleged
assaults occurred during the time that claimant was incarcerated at Willard
Correctional Facility, between the months of November, 2000 and February, 2001.
Since this application was served in June, 2001, there was, at the most, an
elapsed time of somewhere between five and eight months from the dates of the
alleged incidents to the time that notice was provided to the State of this
potential claim. Based upon the nature of the allegations, even though the
State did not have any notice or the opportunity to investigate this claim, the
Court does not believe that the State will encounter any substantial prejudice
in defending the claim should this Court grant the requested relief.
In order to establish a meritorious claim, it is the burden of the claimant to
show that 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 Authority, 92 Misc 2d
1). Claimant only has to establish the appearance of merit and need not prove a
prima facie case at this stage of the proceedings.
In this application, claimant has submitted an affirmation from her attorney
and a verified proposed claim. The affirmation of the attorney, however, who
does not purport to have personal knowledge of the facts, is of no value in
determining whether a meritorious claim has been articulated (cf.,
Vermette v Kenworth Truck Co., 68 NY2d 714; Hasbrouck v City of
Gloversville, 102 AD2d 905, affd 63 NY2d 916).
In her proposed claim, claimant has alleged negligence against the State for
failing to maintain a safe and secure environment in the correctional facility,
and for failure to properly screen, supervise, instruct and train its employees.
Claimant contends that the sexual assaults were a direct result of these
alleged acts of negligence. This proposed claim, verified by claimant,
therefore establishes reasonable cause to believe that a valid claim exists.
For purposes of this application, therefore, the Court finds that a meritorious
claim has been alleged.
It does not appear that claimant has any other available remedy.
The Court may in its discretion place as much or as little weight on any of the
six factors to be considered pursuant to the statute. Under the current law
"[n]othing in the statute makes the presence or absence of any one factor
determinative" (Bay Terrace Coop. Section IV v New York State Employees'
Retirement System Policemen's & Firemen's Retirement System, 55 NY2d
979) and none of the factors can require denial as a matter of law.
Upon weighing and considering all of the factors set forth in Court of Claims
Act, Section 10(6), it is the opinion of this Court that claimant should be
allowed to file the proposed claim.
Accordingly, it is
ORDERED, that Motion No. M-63757 is hereby GRANTED, and claimant is directed to
serve her claim upon the Attorney General and to file the claim with the Chief
Clerk of the Court of Claims within 45 days from the filing date of this
decision and order in the Clerk's office, with such service and filing to be in
accordance with the requirements of Court of Claims Act, §§ 10, 11 and
11-a, and the Uniform Rules for the Court of Claims.