Notice of Motion, Affirmation, with Exhibit (Proposed Claim) 1,2
In his proposed claim, claimant alleges that he was assaulted by an unknown
person on July 29, 2001, while he was incarcerated at Auburn Correctional
Facility. A claim was not served or filed within 90 days of this assault, nor
was a notice of intention served within 90 days of that date, as required by
Court of Claims Act, § 10(3).
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).
Claimant's counsel states that claimant's incarceration, and the resulting
difficulty of obtaining and communicating with counsel, provides a reasonable
excuse. Incarceration, however, is not a disability per se (Plate v
State of New York, 92 Misc 2d 1033). There must be some affirmative showing
that the circumstances of incarceration prevented claimant from taking effective
steps to perfect his claim (Bommarito v State of New York, 35 AD2d 458).
In this case, there has been no such showing by claimant, and this factor
therefore weighs against him.
The factors of notice, opportunity to investigate, and substantial prejudice
will be considered together. In this assault, claimant suffered a cut to his
face and neck which required 20 stitches to treat. Since the medical treatment
was presumably rendered at the correctional facility, the State, at a minimum,
had notice of the assault immediately after its occurrence. Upon being place on
notice that an assault had allegedly occurred, the State certainly had an
opportunity to investigate the circumstances surrounding the incident.
Furthermore, claimant alleges in this claim that the assault occurred in the
presence of "a number of the State's Correction Officers" (see Exhibit A,
proposed claim), an allegation that is unrefuted by the State, since it did not
submit any papers in opposition to this application.
It therefore appears that the State had prompt notice of the alleged assault
which provided it with an opportunity to investigate. Additionally, this
application was filed approximately two months after the time to serve and file
his claim had expired. Based upon all of these circumstances, therefore, it
does not appear that there would be any undue prejudice to the State in allowing
this claim to be filed at this time.
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 his proposed claim, claimant alleges negligence against the State in failing
to provide proper security and protection for him as an inmate in a State
correctional facility. It is well settled, however, that the fact that an
assault has occurred in a State correctional facility does not give rise to an
inference of negligence (Padgett v State of New York, 163 AD2d 914, lv
denied 76 NY2d 711; Schittino v State of New York, 262 AD2d 824,
lv denied 94 NY2d 752).
Accordingly, even though claimant will have to establish more than the fact
that an assault occurred in order to be successful with his claim, it cannot be
said that the proposed claim is patently groundless, frivolous, or legally
defective, especially where the State has not contested the application. For
purposes of this application, the Court therefore 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-64481 is hereby GRANTED, and claimant is directed to
serve his 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.