New York State Court of Claims

New York State Court of Claims

CRAIG v. THE STATE OF NEW YORK, #2002-031-040, , Motion No. M-65122


Claimant's failure to provide either sworn affidavit or verified proposed claim of someone with direct knowledge of the facts alleged is fatal to his motion for permission to file a late claim.

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:
New York State Attorney General
BY: GREGORY P. MILLER, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 16, 2002

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Claimant for permission to file a late claim:
1. Claimant's Notice of Motion, filed April 22, 2002;
2. Statement of Leroi J. Andrews, affirmed April 16, 2002, with attached exhibits;
3. Claimant's memorandum of law, dated April 16, 2002;
4. Affidavit of Gregory P. Miller, Esq., sworn to June 24, 2002;
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 facts.

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 Gloversville, 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 Transportation, 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. 2001-009-051).[1]

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 York, supra).

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.

September 16, 2002
Rochester, New York

Judge of the Court of Claims

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