New York State Court of Claims

New York State Court of Claims

HYNARD v. THE STATE OF NEW YORK, #20001-013-503, Claim No. 100353, Motion No. M-62271


Inmate assault claim dismissed after an evidentiary hearing where the credible evidence established that the claim was not timely filed and served. Judge Patti also held that Defendant did not have prior notice of the assailant's dangerous propensities or intentions to assault claimant and could not be case in liability.

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:
Attorney General of the State of New York
BY: THOMAS G. RAMSAY, ESQ. Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 24 , 2001

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant was assaulted by two other inmates while he was incarcerated at the Orleans Correctional Facility. In his claim, he alleges that he warned Defendant prior to the incident that he was likely to be assaulted and that Defendant negligently failed to prevent the assault. Defendant moved to dismiss the claim (M-62271) on the basis that it was untimely, a defense that it preserved with particularity in its timely filed answer (
see, Court of Claims Act §11[c]; 22 NYCRR 206.7[a]; Defendant's Fourth Affirmative Defense).
A claim sounding in negligence must be served on the Attorney General and filed with the Clerk of the Court within 90 days after its accrual, unless the Claimant serves a notice of intention to file a claim within 90 days after the claim accrued, in which case the Claimant has two years following accrual to serve and file a claim (Court of Claims Act §10[3]).

In this case, the claim alleged that the assault took place on "January 22, 1999, Friday late evening" -- 91 days before the Attorney General received service of the claim on April 23, 1999 and 111 days before Claimant filed his claim with the Clerk of the Court on May 13, 1999. However, Claimant now asserts that the claim accrued on January 23, not January 22, and that he included both a notice of intention and a claim in the certified mail package that the Attorney General received on April 23. If claimant's assertions are correct, then the timely served notice of intention would have extended the time for him to serve and file his claim and this claim would be timely.

In support of his contentions, Claimant provided me with (1) an incident report which stated that the date and time of the incident was "1-23-99;" (2) a notice of intention and an affidavit of service dated April 19, 1999, which stated that he served his "Notice of Intention to File A Claim and together Claim" on the Attorney General by certified mail, return receipt requested, on April 19, 1999; and (3) a copy of the first page of his notice of intention which bore a stamp that showed that the Clerk's Office received his notice of intention on April 23, 1999 and returned it on May 4, 1999.[1]

On October 30, 2000, I held an evidentiary hearing to resolve the factual issues Claimant raised. Following the evidentiary hearing, I reserved on Defendant's motion and the parties proceeded to trial.

In the evidentiary hearing, Carol McKay, Senior Clerk in the Albany office of the Attorney General, testified that the Attorney General received the claim, but not the notice of intention, by certified mail, return receipt requested, on April 23, 1999. She also testified that she reviewed the Claims Bureau's master files and computer database and found no indication that the Attorney General had ever received a notice of intention from Claimant.

Correction Officers Gallivan and Bulls of the Orleans Correctional Facility (Orleans) testified that Claimant approached them on January 22, 1999 at approximately 11:45 p.m. and told them that he had been assaulted in the rest room. The January 22 date is also corroborated by a letter introduced at trial, dated January 23, 1999 (Trial Exhibit A), which Claimant acknowledged writing after the incident. Much like the claim itself, the letter stated that the attack occurred on January 22, 1999 at about 11:15 to 11:30 p.m.

I find that this attack occurred and that the claim accrued on January 22, 1999. Claimant had 90 days, or until April 22, 1999, to serve and file his claim or to serve his notice of intention. Since neither document was served until April 23, 1999, the claim was untimely and must be dismissed.

Even if the claim had been timely filed and served, however, I would nevertheless dismiss it because I am not persuaded that Defendant breached a duty of care.

Claimant recalled telling one person, Correction Officer McQueen, that he "had a problem" with one of the inmates who later assaulted him. However, Correction Officer Donald McQueen, whom I found to be credible, testified that Claimant never told him before the incident that he was concerned about being assaulted or about the two men who later attacked him. Nor did he remember taking any of the steps that would have been required under the "early warning system" at Orleans if Claimant had come to him and asked him for protection.

The State must provide inmates reasonable protection against foreseeable risks of attack, but is not an insurer of their safety (
Blake v State of New York, 259 AD2d 878; Colon v State of New York, 209 AD2d 842; Schittino v State of New York, 262 AD2d 824). It cannot be held liable where, as in this case, the credible evidence failed to establish that Defendant had prior knowledge that Claimant was at risk to be attacked or that Claimant's assailants were particularly inclined to commit an assault (see, Sebastiano v State of New York, 112 AD2d 562; Littlejohn v State of New York, 218 AD2d 833).
The State's motion to dismiss made returnable at the time of trial is now granted. The Chief Clerk of the Court is directed to enter judgment dismissing the claim.

All other motions not heretofore ruled upon are hereby denied.


January 24 , 2001
Rochester, New York

Judge of the Court of Claims

Since notices of intention no longer have to be filed, the Clerk of the Court of Claims returns any notices sent to it for filing (see, L 1995 ch 466).