New York State Court of Claims

New York State Court of Claims

SAYAN v. THE STATE OF NEW YORK, #2003-032-061, , Motion No. M-66702


Synopsis


Motion for permission to late file granted for proposed claim that alleges threatening inmate was allowed to have access to the victim of his threats.


Case Information

UID:
2003-032-061
Claimant(s):
ZULFU SAYAN
Claimant short name:
SAYAN
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-66702
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant's attorney:
Zulfu Sayan, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Dennis M. Acton, Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
June 20, 2003
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant's proposed claim alleges that on November 22, 2002 he was assaulted by another inmate and that the assault could have and should have been prevented by correction officers assigned to the housing area. Movant, who is from Turkey, was in his cell when another inmate, named Perez, began to yell at him, accusing him of being aligned with the "terrorists" and of Arabic descent and threatened to hurt him. Movant alleges that he told the area officer of the threat from Perez but that the officer did nothing. To the contrary, Perez was released from his cell at 1:00 P.M., at the same time that movant came out for his "call-out." Perez then attacked movant.

This motion was brought five months after the proposed claim arose, and a like action against a citizen would not be barred by the applicable statute of limitations (CPLR 214). In determining a motion for permission to file a late claim, the Court must consider, among
other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: 1) whether the delay in filing the claim was excusable; 2) whether the State had notice of the essential facts constituting the claim; 3) whether the State had an opportunity to investigate the circumstances underlying the claim; 4) whether the claim appears to be meritorious; 5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and 6) whether the claimant has another available remedy. The Court in the exercise of its discretion balances these factors. The presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 [1982]).

Movant failed to timely initiate an action in this court because he was not aware of the applicable statutory time limitations and had no access to the prison law library during the 90-day period following the attack. Ignorance of the law is not an acceptable excuse for delay (see, e.g., Erca v State of New York, 51 AD2d 611 [3d Dept 1976], affd 42 NY2d 854 [1977]; Sevillia v State of New York, 91 AD2d 792 [3d Dept 1982]). The fact of incarceration alone does not justify a failure to comply with the statutory time limitations. If a movant wishes to establish that certain specific conditions of incarceration made the delay inevitable, there must be some affirmative showing, not just a generally worded allegation (Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002]; Bommarito v State of New York, 35 AD2d 458 [4th Dept 1971]; Plate v State of New York , 92 Misc 2d 1033, 1037-1038 [Ct Cl 1978]).
Movant asserts that the State had notice of the essential facts constituting the claim because it was witnessed by correction officers and because his injuries were observed by the facility medical staff. It cannot be assumed, however, that the State had actual knowledge of the facts underlying a proposed claim merely because it owned and maintained a certain facility (Turner v State of New York, 40 AD2d 923 [3d Dept 1972]). There must be notice of the essential facts constituting the claim at the supervisory level (Avila v State of New York, 131 Misc 2d 449 [Ct Cl 1986]). Here, it is reasonable to conclude that there was such notice, as this incident involved inmate-on-inmate violence and resulted in substantial injuries: a broken nose, fracture in his hand. In addition, there has not been such a passage of time that witnesses would be hard to locate or to recall the relevant events (see, Edens v State of New York, 259 AD2d 729 [2d Dept 1999]). The Court concludes that defendant's opportunity to investigate the circumstances underlying the claim would not be significantly impeded, and permitting the filing of an untimely claim would not result in substantial prejudice to the State.
It appears that movant does not have an available remedy against any party other than the State.
Finally, movant has succeeded in establishing that the proposed claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). "Facts stated in a motion for leave to file a late claim against the State are deemed true for purpose of motion, when not denied or contradicted in opposing affidavits" (Sessa v State of New York, 88 Misc 2d 454, 458 [Ct Cl 1976], affd 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 [1979]), see also Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). On the facts alleged here by movant, a viable cause of action has been stated.
Taking into account the six statutorily prescribed factors, the Court finds them to weigh in favor of granting movant's request for relief. Movant 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 conformity with the requirements of Court of Claims Act §§10, 11 and 11-a within sixty (60) days after this decision and order is filed.


June 20, 2003
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


The following papers were read on movant's motion for permission to file an untimely claim:
1. Notice of Motion and Supporting Affidavit of Zulfu Sayan, pro se, with annexed proposed claim and exhibits

2. Affidavit in Opposition of Dennis M. Acton, Esq., AAG

Filed papers: None