New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2002-031-017, , Motion No. M-64589


Factual dispute as to whether assault occurred does not preclude late claim relief.

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
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 6, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 4, were read on motion by Claimant for permission to file a late claim:
  1. Claimant's Notice of Motion filed January 18, 2002;
  2. Claimant's affidavit, sworn to December 31, 2001, with attached exhibits;
  3. Affirmation of Thomas G. Ramsay, Esq., dated February 13, 2002;
  4. Claimant's unsworn reply, dated February 19, 2002.
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 assault.

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" Claimant's injuries.

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 at trial.

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.

May 6, 2002
Rochester, New York

Judge of the Court of Claims