New York State Court of Claims

New York State Court of Claims

LEE v. THE STATE OF NEW YORK, #2002-013-039, , Motion No. M-65575


Claimant's motion for permission to file a late claim for use of excessive force in a prison setting is denied on the ground that such a claim is subject to the one-year statute of limitations for actions based on assault (CPLR 215[c]); the motion is granted with respect to the cause of action for negligence alleging negligent training and supervision.

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: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 18, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


On October 16, 2002, the following papers were read on Claimant's motion for permission to file an untimely claim:
1. Notice of Motion and Supporting Affidavit of Terrell Lee, with Annexed Exhibits, Memorandum of Law and Proposed Claim

2. Affirmation in Opposition of James L. Gelormini, Esq.

3. Claimant's Reply Memorandum of Law

4. Filed Papers: None

Claimant's proposed claim alleges that on January 14, 2001, while Claimant was incarcerated at Attica Correctional Facility, he was subjected to excessive force by several correction officers and suffered serious injury as a result. The claim contains the following description of the alleged assault:

...Claimant was standing in line to go outside into the exercise yard. Because of the cold weather, Mr. Lee was dressed in several layers of clothing. Claimant was pulled from the line by Correction Officer Jacobs, and ordered to stand facing the wall. Claimant was then subjected to a search. During the course of the search, Claimant was unnecessarily tackled to the ground by Correction Officer Jacobs and several other correction officers. While Claimant was face down on the ground, Correction Officer Hale crossed Claimant's legs behind him, with Officer Hale's baton underneath, and recklessly and unnecessarily put his full weight on the Claimant's lower legs, resulting in a displaced fracture of both bones of the claimant's lower left leg. After Claimant's leg was broken, correction officers forced the claimant to his feet and shortly thereafter threw the claimant to the ground, causing great pain and injury.

The proposed claim sets forth two causes of action. The first alleges that the correction officers "were negligent in that [their] actions constituted substantial and unjustified departures from accepted standards of penological practice, and [were] otherwise negligent." The second cause of action alleges that the State was negligent in its training and supervision of the officers.

This motion was brought one and one-half years after the proposed claim arose, and permission to late file may not be granted unless a like action against a citizen would not be barred by the applicable statute of limitations (Court of Claims Act §10[6]). Defendant opposes the motion on the ground that at least the first cause of action is untimely, as it is a claim for an intentional tort which must, under CPLR 215(3), be commenced within one year of the date of the injury. Claims for unintentional torts (i.e., negligence) are subject to a three-year statute of limitations (CPLR 214), and the instant motion would be timely with respect to such claims.

Some use of force by prison guards is authorized by their right to conduct searches of inmates and take other steps to secure the safety of prisons (see, Correction Law §137[5]. Claimant asserts that the first cause of action of the proposed claim seeks to recover for the officers' negligence in applying force that was otherwise authorized, when necessary, but only in such degree "as is reasonably required" (7 NYCRR §251-1.2). Defendant contends that this type of claim for excessive use of force has been recognized as an intentional tort. Defendant cites to the recent decision in Smith v County of Erie (295 AD2d 1010) as holding that "once intentional offensive contact has been established," then the person inflicting bodily harm is liable for assault, not negligence, "even when the physical injuries may have been inflicted inadvertently" (id., at 1011). Claimant attempts to distinguish the facts of that case from the instant case by pointing out that the person against whom force was applied in Smith (supra) was a visitor to a correctional facility, not an inmate. This attempt is unsuccessful.

In Smith, a Deputy Sheriff grabbed the visitor's arm while in the process of breaking up an argument in a waiting line. He testified that he grabbed her arm because she was about to strike another visitor; she then tripped and both she and the deputy fell down. As with the correction officers, the Deputy Sheriff was authorized to exert reasonable force against the plaintiff, if necessary, to maintain order and control. He intentionally used such force, although he did not intend the injury to plaintiff that resulted, apparently from the fall. In another recent case, Goff v Clarke (2002 NY Slip Op 50020 [Jan. 22, 2002]), a varsity basketball coach allegedly injured a player when the two voluntarily engaged in the demonstration of a particular wrestling hold. The causes of action alleging intentional torts were time barred, and the court rejected that plaintiff's effort to characterize the injury that resulted from this physical contact as negligent:

New York State law does not recognize a negligent assault cause of action. Sanchez by Hernandez v. Wallkill Central School District, 221 AD2d 857 (3d Dept. 1995). Under facts such as those presented here, defendant's acts cannot be characterized as both intentional and reckless or negligent. Thus, any claim predicated upon defendant's unintentional use of excessive force is not properly denominated as a negligence claim but is rather subsumed in plaintiff's assault claim. Mazzaferro v. Albany Hotel Enterprises, Inc., 127 AD2d 374, 376 (3d Dept. 1987).

(See also Jones v State of New York, 33 NY2d 275, 280 [Where correction officers or others empowered by governmental entities to use force in carrying out their duties use more force than is necessary or reasonable under the circumstances, the cause of action is an intentional tort, for which the employer may be liable under the theory of respondeat superior].) It is true that the proposed claim does not allege assault or any kind of intentional tort, but "[m]erely inserting the term negligence cannot eliminate the necessarily intentional aspects of an arrest or imprisonment or an assault/battery" (Amalfi v State of New York, Ct Cl, MacLaw No. 2001-005-517 [Claim No. 91180 - Motion No. M-60731],May 29, 2001, Corbett, J.).[1] Claimant's proposed first cause of action, therefore, would be time barred if commenced against a private citizen, and thus the Court lacks authority to permit it to be late filed here. As noted above, however, this is not the case with the cause of action alleging negligent training and supervision. That portion of the motion is timely and will be considered.

In determining a motion for permission to file a late claim, the Court must consider, among other relevant factors, the six factors set forth in Subdivision 6 of Section 10 of the Court of Claims Act: (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 Court in the exercise of its discretion balances these factors. The presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

Claimant failed to timely initiate an action in this Court because after this incident he was placed in administrative segregation, where it was difficult for him to draft legal papers or do research and where he did not have access to a notary. He also states that he erroneously believed he would be able to pursue his claim against the State along with a civil rights action that he intended to commence in Federal court.[2] The fact of incarceration is not a disability per se (see, Civil Rights Law §79) and cannot constitute an excuse for failure to comply with the filing requirements of the Court of Claims Act. It may be proper in some instances to consider whether "the conditions of a prisoner's confinement interfere in any substantial way with his ability to effectuate his legal rights" (Plate v State of New York, 92 Misc 2d 1033, 1038). Here, however, Claimant has failed to make an affirmative showing that the circumstances of his incarceration prevented him from taking effective steps (see, Bommarito v State of New York, 35 AD2d 458). Ignorance about the proper tribunal in which an action should be commenced does not constitute an acceptable reason for delay (Erca v State of New York, 51 AD2d 611, affd 42 NY2d 854; Donovan v New York State Teachers Retirement System, 87 AD2d 664). This factor, therefore, weighs against granting the requested relief.

Claimant asserts that the State had notice of the essential facts constituting the claim because the incident was well-documented after the fact by several employees of the Department of Correctional Services. Claimant submits one of these documents, an Inmate Misbehavior Report (Lee Affidavit, Exhibit A) and states that others are in existence but not in his possession at the present time.

It cannot be assumed the State had actual knowledge of the facts giving rise to a claim merely because it owned and maintained a certain facility (Turner v State of New York, 40 AD2d 923) or because a report of the incident was filed (Wolf v State of New York, 140 AD2d 692). In certain instances, however, sufficient notice may be inferred if the occurrence would, in the normal course, be noted and perhaps investigated thoroughly (Espinal v State of New York, 159 Misc 2d 1051; see also, Carmen v State of New York, 49 AD2d 965). An altercation between prison guards and an inmate that results in a broken leg for the inmate would, in my view, be such an occurrence. Consequently, Defendant's opportunity to investigate the circumstances underlying the claim has not been impeded by the passage of time and that permitting the filing of an untimely claim would not result in substantial prejudice to the State.

Claimant would not have an available remedy against any party other than the State.

Finally, Claimant has succeeded in establishing that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Annexed to his affidavit is a physical examination report, dated January 14, 2001, which confirms that his leg was broken on that date. This is sufficient to establish sufficient merit to allow the claim to proceed. The decision cited by defense counsel in support of his argument that there was no sufficient showing of merit (Matter of Trader v State of New York, 277 AD2d 978) was issued when that case was in a much different posture, in response to Defendant's motion for summary judgment. In fact, as an illustration of the different thresholds that must be met at different times within litigation, when the claimant in Trader (supra) had previously sought to amend the claim to add the cause of action for negligent training and supervision, the same appellate court had granted permission (Matter of Trader v State of New York, 259 AD2d 951).

Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting Claimant's motion for permission to file a late claim with respect to the proposed claim's second cause of action for negligent training and supervision. Claimant is therefore directed to file and serve a claim that sets forth only that single cause of action and to do so in conformity with the requirements of Court of Claims Act §§10 and 11 within sixty (60) days after this order is filed.

December 18, 2002
Rochester, New York

Judge of the Court of Claims

  1. [1]This and other Court of Claims decisions may be found on the Court of Claims website at
[2] Claimant does not indicate whether, in fact, he ever commenced such an action.