The proposed claim alleges that Claimant was stabbed four times by unknown
inmates while incarcerated at Elmira Correctional Facility (hereinafter
"Facility") on December 18, 2001. No other details are provided in the moving
papers regarding the history or known risks, if any, surrounding this Claimant
and/or his assailants. The proposed claim is premised upon a negligence cause
of action. According to the State, a Notice of Intention was served on the
Attorney General's office on May 9, 2002 which is beyond the statutory time
period to do so pursuant to CCA 10 and 11. Consequently, Claimant now moves for
permission to file a late claim pursuant to CCA 10 (6).
As a threshold issue, the Court notes that it has jurisdiction to review and
determine this motion since it was filed within three years from the date of
accrual. (CPLR 214; CCA 10 ).
Turning to the substance of the motion, the factors the Court must consider in
determining a properly framed CCA 10 (6) motion are whether:
1. the delay in filing the claim was excusable,
2. the State had notice of the essential facts constituting the claim,
5. the failure to file or serve upon the attorney general a timely claim or to
serve upon the attorney general a notice of intention resulted in substantial
prejudice to the State, and
6. there is any other available remedy.
Initially, the Court notes that Claimant has not submitted a separate affidavit
addressing the statutory factors set forth in CCA 10 (6), rather only a "Notice
of Intention" and a proposed claim. As such, the Court will glean as much
information as possible from these papers in addressing the statutory factors.
The Court will first examine the factor that has been characterized as the most
decisive component in determining a motion under CCA 10 (6), namely whether the
proposed claim appears meritorious, since it would be futile to permit a
meritless claim to proceed. (Matter of Santana v New York State Thruway
Auth., 92 Misc 2d 1). In order to establish a meritorious claim, Claimant
must establish 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. (Id. at 11). In order to make this determination the
Court may examine the proposed causes of action, as well as all submitted papers
and exhibits. (Id.). Although a late filing applicant need not overcome
all legal objections relative to the merit of the proposed claim, an applicant
must establish the probable existence of evidence necessary to support the
fundamental elements of the proposed claim. (Id. at 11-12).
Claimant's proposed claim is described as a negligence action against the
State. Although not specifically stated the Court will construe this allegation
to include the State's failure to provide proper security, supervision 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 in and of
itself. (Schittino v State of New York, 262 AD2d 824, lv denied
94 NY2d 752). Generally, liability in a claim asserting negligence on the
part of the State when one inmate assaults another inmate must be predicated
upon one of the following grounds: (1) the victim was a known risk and the
State failed to provide protection; (2) the State had notice that the assailant
was particularly prone to perpetrating such an assault and failed to take
precautionary measures; or (3) the State had ample notice and ample opportunity
to intervene but failed to act. (Sebastiano v State of New York, 112
AD2d 562; Littlejohn v State of New York, 218 AD2d 833; Huertas v
State of New York, 84 AD2d 650).
Here, Claimant does not even attempt to argue any one of these grounds.
Claimant has not alleged any facts or circumstances which would indicate that
the State was aware of any specific, as opposed to a general, threat of harm to
him to satisfy the first ground. Claimant states the identities of his
attackers are unknown, so he will obviously be unable to establish the second
ground. Nor is there an allegation that the attack on Claimant was foreseeable,
thereby negating any reliance on the third ground. Accordingly, the proposed
claim is without an appearance of merit. (Bailey v State of New York, Ct
Cl, July 13, 2000, McNamara, Claim No. None, Motion No. M-61591). Consequently,
although there is no doubt that an assault took place as alleged by Claimant,
the Court finds that Claimant has failed to establish that there is reasonable
cause to believe a cause of action based upon negligent supervision exists.
This factor weighs against Claimant.
As to the remaining factors, Claimant offers no explanation for the delay in
filing the claim. As such, the Court finds this factor weighs against
The next three factors of notice, opportunity and prejudice comprise the next
three factors and may be considered together since they involve analogous
considerations. In this assault, the State does not genuinely dispute that
Claimant suffered stab wounds to his head, hand and arm. As such, it is fair to
presume that Claimant received immediate medical attention which would have
presumably been, at least initially, rendered at the Facility and instigated an
investigation. Accordingly, in this Court's view, the State, at a minimum, had
notice of the assault immediately after its occurrence. Upon being placed on
notice that an assault had allegedly occurred, the State certainly had an
opportunity to investigate the circumstances surrounding the incident.
Additionally, this application was filed only 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. The
Court finds these three factors weigh in Claimant's favor.
With respect to the final factor, since Claimant's assailant was not
identified, he does not have an alternate remedy available to him. (Williams
v State of New York, Ct Cl, February 19, 2002, Minarik, J., Claim No. None,
Motion No. M-64161). Thus, this factor weighs in Claimant's favor.
Accordingly, upon reviewing and balancing all of the factors enumerated in CCA
10 (6), the Court finds that two of the six statutory factors, including the
all-important issue of merit, weigh against Claimant, thereby warranting denial
of his motion for permission to late file.
In view of the foregoing, IT IS ORDERED that Claimant's motion for permission
to file a late claim, Motion No. M-65169, is DENIED.