5. Affidavit of Angelo Justiniano, sworn to June 19, 2002, with attached
exhibits.This is the motion of Edward Craig, an inmate in the care and custody
of the New York State Department of Correctional Services, for permission to
file a late claim pursuant to § 50-E of the General Municipal Law (sic) and
§ 10(6) of the Court of Claims Act (the"CCA").
A document identified as a proposed notice of claim which is appended to
Claimant's moving papers alleges that Defendant negligently failed to protect
Claimant from being assaulted by other inmates.
The proposed notice of claim, signed only by Claimant's counsel, is in the form
of a notice of claim pursuant to the General Municipal Law, or a notice of
intention to file a claim in the Court of Claims, in that it expresses an
intention to commence an action in the future. Claimant's attorney also
identifies specifically § 50-E of the General Municipal Law in his
affidavit. However, Court of Claims Act § 10(6) only provides for remedial
relief in the form of permitting the service and filing of a late claim (the
Court of Claims does not use any pleading or document entitled ‘notice of
claim') and, of course, the General Municipal Law does not pertain to practice
in the Court of Claims. I will, therefore, treat the proposed notice of claim
as a proposed claim. Importantly, I note that Claimant's application contains
the proposed claim which is attested to by Claimant's attorney, but not verified
by Claimant, and an affidavit from Claimant's attorney. The application
contains no sworn statement by anyone with personal knowledge of the underlying
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).
Defendant, in opposing this motion, contests only Claimant's excuse for the
delay and the merit of the proposed claim. With regard to his excuse for the
delay, Claimant asserts basically that the delay was caused by the Court of
Claims Clerk's Office when it treated the timely filed claim as a notice of
intention to file a claim. As a notice of intention to file a claim need not be
filed with the Clerk's office, it was returned it to Claimant's counsel.
However, as stated above, the document filed with the Clerk did not purport to
be a claim, rather, it mentioned an intent to serve a claim in the future. The
document was, therefore, understandably deemed to be a notice of intention to
file a claim. More importantly, even if the Clerk had treated this document as
a claim and filed it at that time, the claim still would not have been timely as
service upon the Attorney General was not affected until after the 90 day
limitation imposed by CCA § 11 ( Miller affidavit, paragraph 13).
Also with regard to Claimant's excuse for the delay, Claimant's counsel points
out that Claimant's injuries and his resulting confinement in various medical
and correctional facilities inhibited his ability to file a timely claim.
However, no documentation of any type of physical disability impacting
Claimant's ability to file a timely claim accompanies the application. This
factor, therefore, weighs in Defendant's favor.
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). Unlike a party
who has timely filed a claim, a party seeking to file a late claim has the
heavier burden of demonstrating that the claim appears to be meritorious
(see Witko v State of New York, 212 AD2d 889; Nyberg v State of
New York, 154 Misc 2d 199).
With regard to merit, Defendant opposes this application on both technical and
substantive grounds. Defendant asserts that, because Claimant's attorney's
affidavit in support of this motion does not come from someone with personal
knowledge, and because the proposed claim is attested to by an attorney and not
verified by Claimant, the application contains no facts in admissible form that
may be considered evidence of merit. Defendant also asserts that the
application does not even allege facts which demonstrate that there existed any
foreseeable risk of harm to Claimant.
In an application such as this, the party making the motion has the burden of
demonstrating that the proposed claim has merit. However, the affirmation of
the attorney who does not purport to have personal knowledge of the facts is of
no value in determining whether a meritorious claim has been articulated (cf.
Vermette v Kenworth Truck Co.
, 68 NY2d 714; Hasbrouck v City of
, 102 AD2d 905, affd
63 NY2d 916). Similarly, an
unverified proposed claim is of no value to the Court in making this
determination (cf. Janik v State of New York Department of
, Ct Cl, January 3, 2001 [Motion No. M-60916], Corbett, J.,
UID No. 2001-005-500]; Reilly-Usher v State of New York
, Ct Cl, October
31, 2001 [Motion No. M-63757], Midey, J., UID No.
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). However, "[t]he State is
not an insurer of inmate safety; its duty is to exercise reasonable care to
prevent foreseeable attacks by other inmates" (Padgett v State of New
York, 163 AD2d 914). The mere occurrence of an unprovoked, unexplained,
attack by a fellow inmate, with whom Claimant had no prior contact, does not
give rise to an inference of negligence, absent a showing that prison officials
had notice of a foreseeable dangerous situation (see Stanley v State
of New York 239 AD2d 700: Roudette v State of New York, 224 AD2d 808;
Leibach v State of New York, 215 AD2d 978; Padgett v State of New
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's counsel argues that ". . . petitioner is asserting
that the negligence, carelessness or recklessness on the part of the corrections
facility in the manner in which they supervised the inmates resulted in EDWARD
CRAIG JR.'s severe and permanent injuries." (Andrews affirmation, paragraph 18).
In the proposed claim, counsel also mentions that Claimant's assailants "were
inmates with known violent propensities," but does so in the context of the
inadequate supervision theory. The record before me is devoid of any specific
allegations of violence on the part of Claimant's attackers directed at other
inmates at the facility, facility staff, or Claimant. The simple bald assertion
that the assailants were violent is not sufficient to create even a presumption
of foreseeable risk of harm (see Matter of Garguiolo v New York State Thruway
Auth., 145 AD2d 915).
For the reasons set forth above, Claimant has failed to submit evidence, in
admissible form or otherwise, establishing that he has a meritorious claim
against the State of New York. Claimant's motion for permission to file a late
claim is denied.