This is the motion of Marvin Smith for permission to file a late claim pursuant
to §10(6) of the Court of Claims Act (the"CCA"). The proposed claim
alleges that at 1:00 a.m. on October 4, 2001, Claimant was threatened by other
inmates on his cell block. According to Claimant, these other inmates wanted to
hurt him because he was a convicted rapist. Claimant alleges that he reported
the threats to correction officers and that he asked to be placed in protective
custody. He further alleges that he was interviewed for protective custody at
7:30 that morning. According to Claimant, the threats continued and he again
reported them to Defendant sometime after 11:00 a.m. However, Claimant was not
relocated, nor was he placed in protective custody and, sometime after 12:00
noon, he was assaulted by 7 other inmates from the cells surrounding his own.
Claimant alleges Defendant negligently failed to protect him from the
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).
With regard to his excuse for the delay, Claimant alleges that his papers
disappeared while being copied by an assistant in the law library. This excuse
is at least plausible. However, as Defendant correctly points out, the late
claim application, which purports to explain the delay, is dated December 31,
2001, a point in time prior to the expiration of the statutory period in which
Claimant could have filed a timely claim. Why the claim could not have been
filed at that time is unexplained by Claimant. I find that this factor weighs
in Defendant's favor. 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
v New York State Employees' Retirement System Policemen's & Firemen's
Retirement System, 55 NY2d 979 supra).
Neither Claimant nor Defendant addresses the existence of other remedies.
However, given the nature of the alleged claim and the fact that Claimant is an
inmate, Claimant does not appear to have any other adequate avenue of redress
for his injuries arising from the incident.
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). Claimant alleges that he immediately
reported the attack and that he was taken to the facility hospital. He,
therefore, maintains that each of these three factors should weigh in his favor.
These facts are in dispute, however, as Defendant asserts that it has no written
record that the alleged incident occurred. Defendant argues that, because there
is no record, each of these three factors weighs in its favor. Defendant also
points out that, in an interview for protective custody (Defendant's exhibit A)
which occurred on October 9, 2001, 5 days after the alleged assault, Claimant
did not indicate that an assault had occurred. He merely asserted the need for
protective custody due to threats from other inmates. Defendant implies that,
if the assault had occurred, it would be very unlikely that claimant would fail
to mention this fact in the interview. However, I note that the record of this
interview was neither prepared by, nor signed by Claimant.
Claimant submitted a supplemental affidavit in which he argues that there are
no records of the event because the agents of the State conspired against him
and refused to file an unusual incident report concerning the assault upon him.
He asserts that his medical records, which were not produced for the purposes of
this motion, would confirm that he sought medical attention on October 4, 2001
and that he stated at that time that he had been assaulted and robbed. This
conflicts somewhat with Claimant's initial submission, in which he states that
the medical records do not contain information concerning the assault. In that
submission, Claimant implies that the facility nurse was involved in the alleged
conspiracy against him, saying that the nurse "failed to record and report"
While there appears to be a question of fact as to whether Defendant had notice
of and a chance to investigate the alleged assault, I find that the delay in
filing the proposed claim is so slight that Defendant would not be substantially
prejudiced if the motion were granted.
Of the six enumerated factors in CCA §10(6), it is the appearance of merit
that is most significant. It would be pointless to grant permission to file
late if the proposed claim did not have at least the appearance of merit (See,
e.g., Prusack v State of New York, 117 AD2d 729). 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., 92 Misc 2d 1).
As a general proposition, a claim of negligence against the State arising from
an inmate assault on another inmate, may be predicated on one of the following
three grounds: (1) the victim was a known risk and the State failed to provide
reasonable protection (see, Sebastiano v State of New York, 112 AD2d
562); (2) the State had notice that the assailant was particularly prone to
committing such an assault and failed to take proper precautionary measures
(see, Littlejohn v State of New York, 218 AD2d 833); or (3) the State had
ample opportunity to intervene in the assault but failed to act (see, Huertas
v State of New York, 84 AD2d 650).
Here, Claimant alleges that the State was negligent in failing to remove him
from a dangerous situation after Claimant had notified Defendant of the danger.
Though much of what occurred that day is in dispute, both parties agree that
Claimant requested protective custody on the day of the assault. Whether the
assault occurred or, if it did, whether the circumstances surrounding Claimant's
request for protective custody were enough to put Defendant on notice that steps
needed to be taken to prevent the assault are questions of fact that must be
resolved at a later time. While the standard referred to above for establishing
merit in a late claim application clearly places a heavier burden on a party who
fails to comply with the statutory requirements, it does not require a Claimant
to overcome all objections, nor does it suggest that the Court should 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., supra, at 11-12 ).
I find that, for the purposes of this application, Claimant has met the
threshold for establishing that his claim has the appearance of merit. Of
course, a greater burden rests upon Claimant to establish the merit of his claim
Upon reviewing and balancing all of the factors enumerated in CCA §10(6),
I find that they weigh in favor of granting Claimant's motion for permission to
file a late claim. Claimant is, therefore, directed to file and serve a claim
identical to the proposed claim submitted in support of this motion; and to do
so in conformance with the requirements of CCA §§10, 11, and 11-a
within sixty (60) days after this order is filed.