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 (
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).
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.
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
, 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
All other motions not heretofore ruled upon are hereby denied.
LET JUDGMENT BE ENTERED ACCORDINGLY.