New York State Court of Claims

New York State Court of Claims

LUCAS v. THE STATE OF NEW YORK, #2001-010-046, Claim No. NONE, Motion No. M-63163


Synopsis


claimant's motion for leave to file a late claim is denied.

Case Information

UID:
2001-010-046
Claimant(s):
ANTONIO LUCAS
Claimant short name:
LUCAS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-63163
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
ANDREW F. PLASSE, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Richard Lombardo, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 9, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on claimant's motion for leave to file a late claim or to deem his Notice of Intention a claim:[1]
Notice of Motion, Attorney's Supporting Affirmation and Exhibits, Claimant's Supporting Affidavit.................................................................................................1

Attorney's Affirmation in Opposition and Exhibits.................................................2

On May 11, 1998, claimant timely and properly served a Notice of Intention upon the Attorney General's Office (Defendant's Exhibit A). The Notice of Intention alleged:

The nature of this claim is as follows: On Feb. 26 1998 while returning from the chapel I was attacked and slashed as a result I recived [sic] 25 stitches. The circumstances of claimants [sic] injury are that such injury was due to the negligence and failiar [sic] of security and custody and control on part of the state employees. Which now is a result of my being the claimant, I am currently disfigured.



The place where this claim arose is: Sing Sing Corretional [sic] Facility at 354 Hunter Street. Ossining, New York 10562


The claim arose on: Febuary [sic] 28, 1998.


Claimant, however, failed to file a claim pursuant to Court of Claims Act § 10(3), within two years of accrual of his negligence claim (see, Court of Claims Act §10(3)). Accordingly, claimant seeks leave to file a late claim or requests that his Notice of Intention be deemed a claim. Claimant's motion was filed on March 2, 2001.

Court of Claims Act § 10(6) provides that a motion for leave to file a late claim, must be brought "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules" [emphasis added]. Here, the applicable time period is three years (CPLR §214). While claimant timely served the motion upon the Attorney General's Office, claimant failed to timely file it with the Court (see generally, Dependable Trucking Co. v New York State Thruway Auth., 41 AD2d 985, 986 [mailing of notice of claim on the 90th day and received by the Clerk of the Court of Claims on the 91st day does not constitute timely filing]). "The failure to file such application within the proscribed time period creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief" (Bergman v State of New York, ___Ad2d___, 722 NYS2d 82, 85). Claimant's failure to comply with the statutory requirements for bringing a late claim application precludes the Court from considering claimant's request for leave to file a late claim. Thus, that branch of claimant's application is DENIED.

In any event, even if claimant had timely filed his motion papers, the Court would have to consider the six factors set forth in Court of Claims Act § 10(6): (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the claimant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979).

Upon consideration of these factors, claimant's application would not be granted because, inter alia, claimant did not present a reasonable excuse for his delay. Claimant's purported excuse for failure to timely serve and file a claim is essentially ignorance of the law, which is not a reasonable excuse (see, Hall v State of New York, 28 AD2d 1034). Most significantly, claimant has failed to demonstrate the appearance of merit of his proposed claim (see, Calco v State of New York, 165 AD2d 117; Rivers v State of New York, 159 AD2d 788; Williams v State of New York, 164 Misc 2d 783). Unlike a party who has timely filed a claim, a party seeking to file a late claim has the heavier burden of demonstrating that the claim appears to be meritorious (see, Nyberg v State of New York, 154 Misc 2d 199; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

The proposed claim alleges negligent supervision and negligence in failing to prevent the attack. Claimant must submit more than bare conclusory allegations of negligence (see, Matter of Garguiolo v New York State Thruway Auth., 145 AD2d 915). It is well settled that the State is required to use reasonable care to protect inmates of its correctional facilities from foreseeable risk of harm (see, Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329, Sebastiano v State of New York, 112 AD2d 562). Foreseeable risk of harm includes the risk of attack by other prisoners (see, Littlejohn v State of New York, 218 AD2d 833). However, "[t]he State is not an insurer of inmate safety; its duty is to exercise reasonable care to prevent foreseeable attacks by other inmates" (Padgett v State of New York, 163 AD2d 914). The mere occurrence of an unprovoked, unexplained attack by a fellow inmate, with whom claimant had no prior contact, does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeable dangerous situation (see, Stanley v State of New York, 239 AD2d 700; Roudette v State of New York, 224 AD2d 808; Leibach v State of New York, 215 AD2d 978; Padgett v State of New York, supra). The fact that a correction officer may not have been present when the assault on claimant occurred does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeable dangerous situation (see, Leibach v State of New York, supra; Padgett v State of New York, supra). Here, claimant failed to make the requisite showing of the appearance of merit of his negligence claim.

With regard to that branch of claimant's application which seeks to have the Notice of Intention deemed a claim, Court of Claims Act § 10(8)(a) provides:

[a] claimant who timely serves and files a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served and filed, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant



(emphasis added). Court of Claims Act § 10(6) was amended in 1995 by removing the requirement of filing the Notice of Intention with the Court (see, L 1995, ch 466§1). It is disputed whether this amendment impliedly repealed the remedy available under Court of Claims Act § 10(8)(a) (see, Konviser v State of New York, 180 Misc 2d 174) or whether the remedy remains available where a Notice of Intention was timely served upon the Attorney General's office and all of the remaining statutory prerequisites for relief, set forth in Court of Claims Act § 10(8)(a), have been met (see, Muller v State of New York, 184 Misc 2d 500). This Court, in accord with the latter case, finds that Court of Claims Act § 10(8)(a) remains an available remedy; however in the instant case, as set forth supra, claimant failed to timely file his motion papers with the Clerk of the Court and, therefore, the Court is without discretionary power to grant claimant's request for relief. In any event, even if claimant had timely filed his motion papers, the Court would not, as set forth infra, grant claimant's application.

Court of Claims Act § 11(b) provides, "[t]he claim shall state the time and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed. *** The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated." Claimant's Notice of Intention fails to state, with sufficient specificity, the time and place where the claim arose (see, Torres v State of New York, 233 AD2d 389 [Notice of Intention did not sufficiently state where the claim arose]). Indeed, the Notice of Intention sets forth two different dates (i.e., February 26, 1998 and February 28, 1998). Additionally, the Notice of Intention does not "set forth a statement with sufficient specificity so as to enable the State to investigate the claim promptly and ascertain its liability" (Phillips v State of New York, 237 AD2d 590). Notably, the Notice of Intention fails to identify claimant's alleged attacker, e.g. another inmate or a State employee, and the Notice of Intention fails to state how defendant may be liable for the attack. Accordingly, that branch of claimant's motion which seeks to deem the Notice of Intention a claim is DENIED.


July 9, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] Alternatively, claimant seeks to amend his Notice of Intention; however there is no authority for permitting amendment to a Notice of Intention ninety days after the accrual date. Thus, that branch of claimant's motion is DENIED.