New York State Court of Claims

New York State Court of Claims

ESCALET v. THE STATE OF NEW YORK, #2002-010-002, Claim No. NONE, Motion No. M-63427


Synopsis


Claimant's late claim application is denied and claim is dismissed.

Case Information

UID:
2002-010-002
Claimant(s):
ALBERT ESCALET
Claimant short name:
ESCALET
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-63427
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: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 19, 2002
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-6 were read and considered by the Court on claimant's late claim application:
Notice of Motion, Supporting Affirmation and Exhibits.........................................1

Affirmation in Opposition and Exhibits...................................................................2

Claimant's Supporting Affidavit Dated November 15, 2001....................................3

Defendant's Reply Affirmation................................................................................4

Claimant's Affidavit Dated December 21, 2001......................................................5

Defendant's Supplemental Reply.............................................................................6

Claim No. 102346 alleges that on April 29, 1998 at approximately 3:00 p.m. in the HBA yard area, an inmate at Sing Sing Correctional Facility was assaulted by another inmate and suffered a four inch laceration on his right cheek (Claimant's Ex. A.). Claimant contends that defendant was negligent in its failure to prevent the attack. The claim was filed on April 24, 2000. The claim was served by certified mail, return receipt requested, and received by the Attorney General's office on May 2, 2000. Defendant served an answer dated June 8, 2000 asserting that the Court lacked jurisdiction over the claim because it was not timely filed nor served[1] (Claimant's Ex. D).

More than 10 months after receiving defendant's answer, claimant brings this application for leave to serve and file the proposed claim (Claimant's Ex. E).

Court of Claims Act § 10(6) requires that the Court consider, among other relevant factors: (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).

Claimant offers no excuse for the more than 10 month delay; however, the presence or absence of any one factor is not determinative (see, Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, supra). The most significant factor in the weighing process is the appearance of merit of the proposed claim.

The mere occurrence of an unprovoked, unexplained attack by another inmate, with whom claimant had no prior confrontations, does not give rise to an inference of negligence, absent a showing that prison officials had notice of a foreseeably dangerous situation (see, Stanley v State of New York, 239 AD2d 700; Roudette v State of New York, 224 AD2d 808; Padgett v State of New York; 163 AD2d 914). Further, while the State is required to use reasonable care to protect the inmates of its correctional facilities from the foreseeable risks of harm (see, Flaherty v State of New York, 296 NY 342; Littlejohn v State of New York, 218 AD2d 833; Dizak v State of New York, 124 AD2d 329; Sebastiano v State of New York, 112AD2d 562), "[t]he State is not an insurer of inmate safety" (see, Padgett v State of New York, supra; Leibach v State of New York, 215 AD2d 978).

To establish liability, claimant must demonstrate one of the following (1) the State knew that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection (see Sebastiano v State of New York, supra); (2) the assailant was particularly known to the State to be prone to perpetrating such an assault and the State did not take proper precautionary measures (see, Wilson v State of New York, 36 AD2d 559); or (3) the State had ample notice and opportunity to intervene but did not act (see, Huertas v State of New York, 84 AD2d 650).

While the affirmation of claimant's attorney asserts that claimant knew his attacker was the brother of another inmate who had previously assaulted claimant, such information is absent from all reports and from claimant's own affidavit submitted with the motion papers. Subsequently, claimant submitted another affidavit dated December 21, 2001 which states:
6) I saw inmate Ariel run into the basketball field after I was cut. 7) I know inmate Ariel. In 1994, his brother cut me on the left side of my face in Rikers Island. 8) Upon information and belief, inmate Ariel had a history of assaulting other inmates at the time of this incident

(Claimant's Affidavit, ¶¶ 6-8). This affidavit, however, adds little to claimant's attempt to demonstrate the appearance of merit of the claim. The affidavit does not provide anything more than claimant's observation of an inmate called "Ariel" run into the basketball field after the attack. Ariel is not specifically identified as claimant's attacker, nor is any further description of Ariel provided. Moreover, claimant's newly asserted identification of an inmate called "Ariel" was never reported to defendant and claimant never identified Ariel as his attacker to defendant. Nor did claimant provide any reason why he was the subject of an attack, thereby frustrating any investigation of the incident. Additionally, claimant never asked that "Ariel" be placed on claimant's enemies list prior to the attack nor did claimant give defendant notice otherwise of any concerns regarding "Ariel."

Accordingly, upon consideration of all the relevant factors, claimant's late claim application is DENIED and the Court, sua sponte, dismisses Claim No.102346 based upon a lack of jurisdiction.


April 19, 2002
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1] Claimant's attorney did not serve a Notice of Intention on behalf of claimant, nor was there any proof that claimant did so pro se (Attorney's Affirmation, ¶ 7).