Affidavit of Frederick L. Williams sworn to October 4, 2001
and attached exhibits 2
Affidavit of Wendy E. Morcio sworn to November, 21, 2001 3
Affidavit of Randall Smith sworn to November, 20, 2001 4
Affidavit of Frederick L. Williams sworn to December 5, 2001 5
This is the motion of Frederick L. Williams for permission to file a late
claim, pursuant to §10.6 of the Court of Claims Act (the"CCA"). In the
proposed claim, Mr. Williams alleges negligence stemming from an assault upon
him by three other inmates at Wende Correctional Facility ("Wende") on October
16, 2000. Claimant was stabbed repeatedly during the assault and suffered,
among other injuries, the loss of his right eye and a collapsed lung. Claimant
asserts that Defendant failed to take proper precautions to protect him from the
assault. He alleges that Defendant knew that he was in danger, as he had been
assaulted at Wende on three prior occasions. Claimant also alleges that
Defendant's agent, Correction Officer Smith, negligently failed to intervene
once he became aware of the altercation between the inmates. In fact, Claimant
alleges that Officer Smith encouraged the assault and cheered on Claimant's
The Defendant, through the affidavits of Wendy E. Morcio, Assistant Attorney
General, and Correction Officer Randall Smith, asserts that the motion should be
denied. Specifically, the affidavit of Officer Smith indicates that he was not
in the area where Claimant was assaulted and that he only saw Claimant after the
assault was over. He claims that Claimant initially indicated that his injuries
were the result of his falling against the metal latch of his cell door.
Defendant takes the position that the previous assaults upon Claimant involved
different circumstances, different assailants, and are too remote in time (two
years or more) to have provided notice to Defendant that the October 16, 2000
attack upon Claimant was foreseeable.
Subdivision 6 of §10 of the CCA enumerates six factors to be weighed in
connection with a late claim motion: (1) whether the delay was excusable; (2)
whether Claimant has any other remedy; (3) whether Defendant had notice of the
essential facts constituting the claim; (4) whether Defendant had an opportunity
to investigate; (5) whether Defendant would be substantially prejudiced; and
(6) whether the claim appears to be meritorious. This list is not exhaustive
and the presence or absence of any one factor is not dispositive. Rather, the
Court in its discretion balances these factors in making its determination
(Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys.
Policemen's and Firemen's Retirement Sys., 55 NY2d 979).
This motion was filed just more than one year after the accident. As to his
excuse for failing to file a timely claim, Claimant states that the injuries he
suffered in the assault, his subsequent hospitalization, and his continued
vision problems (also a result of the attack) prevented him from filing his
claim in a timely manner. Incarceration alone does not justify Claimant's
failure to comply with the time requirements of the CCA (Bommarito v State of
New York, 35 AD2d 458; Plate v State of New York, 92 Misc 2d 1033,
1037-1038). Had Claimant provided medical documentation of his physical or
mental incapacity, I may have weighed this factor differently. However, based
on the materials presented, this factor tends to weigh in favor of Defendant.
The absence of an excuse, however, is only one of the factors considered by the
Court in reviewing a §10(6) application, and does not necessarily preclude
the relief sought here (Bay Terrace Coop. Section IV, supra).
Claimant's assailants were not identified. Therefore, Claimant does not have
an alternate remedy available to him and this factor weighs in his favor.
The next three factors covering notice, opportunity to investigate, and
prejudice are closely related and may be considered together (Brewer v State
of New York, 176 Misc 2d 337, 342). Defendant had notice of the
altercation. Defendant's agents learned of the assault shortly after it
happened and conducted an investigation of the incident. C.O. Smith arrived on
the scene at least just after the assault. He investigated the scene, found a
weapon, and prepared a written report. Claimant also indicates, and Defendant
does not dispute, that he was taken to the infirmary and received medical
attention just after the incident. Pictures and other documentation of the
incident and of Claimant's injuries are presumably located in Claimant's medical
file. This medical file is created and maintained by officers or agents of
In support of its position that it would be prejudiced by permitting the claim
at this time, Defendant asserts that, with the passage of time, it is likely
that witnesses' memories have faded. I find this unpersuasive. Taken as a
whole, it does not appear that Defendant's ability to investigate or defend this
action has been significantly prejudiced.
The final and most important factor to be considered is merit. It is well
settled that the State is required to use reasonable care to protect the inmates
of its correctional facilities from foreseeable risk of harm ( see, Flaherty
v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d
329; Sebastiano v State of New York, 112 AD2d 562). Foreseeable risk of
harm includes the risk of attack by other prisoners (see, Littlejohn v State
of New York, 218 AD2d 833).
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 (Sebastiano v State of New York, supra); (2) the State
had notice that the assailant was particularly prone to perpetrating such an
assault and failed to take precautionary measures (Littlejohn v State of New
York, supra; Wilson v State of New York, 36 AD2d 559); or (3) the
State had ample notice and ample opportunity to intervene but failed to act
(Schittino v State of New York, 262 AD2d 824; Huertas v State of New
York, 84 AD2d 650).
In this case, Claimant asserts grounds one and three listed above. He alleges
that, due to the previous attacks upon him and his direct requests to be
transferred for his protection, Defendant knew that he was in danger and failed
to take adequate steps to prevent the attack. Additionally, and in fact more
forcefully stressed in his proposed claim, Claimant asserts that Defendant
should have acted more quickly to break up the altercation. Claimant alleges
that Officer Smith observed the fight and not only failed to intercede, but
actually cheered on his assailants.
Defendant categorically denies that this ever occurred and offers the affidavit
of Officer Smith, in which he states that he did not even witness the
altercation. However, Defendant's argument at best demonstrates a factual
dispute as to what occurred at the time of the accident. Similarly, whether the
previous attacks upon Claimant were in fact related and whether they gave notice
to Defendant that Claimant was in danger on October 16, 2000 are questions of
fact. It is not required for purposes of this motion that the court engage in
the kind of fact-finding that would ultimately be necessary to adjudicate the
actual merits of the case (Matter of Santana v New York State Thruway
Auth., 92 Misc 2d 1). Generally, a proposed claim meets the appearance of
merit standard if it passes a two-fold test. It must not be patently
groundless, frivolous or legally defective, and upon consideration of the entire
record, there must be reasonable cause to believe a valid cause of action exists
(Matter of Santana v New York State Thruway Auth., supra at 11-12).
Here Claimant alleges that Defendant acted negligently by ignoring his requests
to be transferred after three assaults and after communications from both
Claimant and his mother that Claimant was in danger. Claimant also alleges that
Defendant had a chance to intervene and prevent the attack or, at least,
severity of the injuries Claimant suffered, but failed to do so. I find that
Claimant has succeeded in establishing that the proposed claim has the
appearance of merit.
Upon reviewing and balancing all of the factors enumerated in CCA §10(6),
the Court finds that they weigh in favor of granting Claimant's motion for
permission to file a late claim.
Based upon the foregoing, it is
ORDERED, that Claimant's motion for permission to file a late claim is
granted. Claimant is directed to file and serve a claim identical to the
proposed claim dated October 4, 2001, in support of this motion; and to do so in
compliance with the requirements of CCA §§10, 11, and 11-a within
sixty (60) days after this order is filed.