Claimant, an inmate appearing pro se, moves for permission to file a late claim
pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New
York (hereinafter "State") opposes the motion.
The proposed claim alleges claimant was assaulted by another inmate while
incarcerated at Elmira Correctional Facility (hereinafter "Elmira") on October
More specifically, claimant alleges
he was working in the messhall at Elmira when one of the correction officers
left his assigned area at which time claimant was attacked and cut on the right
side of his face resulting in nineteen stitches.
Initially, the court notes that it does have jurisdiction to review and
determine this motion, since this motion was filed within the three year time
period applicable to negligence actions as prescribed by Article 2 of the CPLR.
(CCA 10 ).
The substantive factors that the court must consider in determining a properly
framed CCA 10 (6) motion are whether:
1. the delay in filing the claim was excusable,
2. the State had notice of the essential facts constituting the claim,
3. the State had an opportunity to investigate the circumstances underlying
4. the claim appears to be meritorious,
5. the failure to file or serve upon the attorney general a timely claim or
to serve upon the attorney general a notice of intention resulted in
substantial prejudice to the State, and
6. there is any other available remedy.
The court will first address whether the proposed claim appears meritorious
since it is the most decisive component in determining a motion under CCA 10 (6)
and since it would be futile to permit a meritless claim to proceed. (Matter
of Santana v New York State Thruway Auth., 92 Misc 2d 1). In order to
establish a meritorious claim, claimant must establish his proposed claim is not
patently groundless, frivolous, or legally defective and that there is
reasonable cause to believe that a valid claim exists. (Id. at 11).
Here, claimant alleges in very simple terms that when a correction officer left
his post he was assaulted by another inmate on October 17, 2003. The State does
not dispute that claimant was assaulted and reported in an Unusual Incident
Report, but rather objects to the conclusory nature of claimant's allegations
regarding the assumption that claimant would not have been attacked if the
correction officer had stayed at his post. Additionally, the State points out
claimant's "inability or unwillingness to identify his attacker", as well as his
refusal to sign a protection waiver.
(Affirmation of James E. Shoemaker, ¶ 11). However, for the purposes of
this motion "[f]acts 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,
63 AD2d 334, affd
47 NY2d 976). The State does not dispute
that an attack occurred or that a correction officer left his post. As such,
the court finds that the proposed claim appears meritorious within the meaning
of CCA 10 (6). Thus, the factor of merit weighs in claimant's favor.
With respect to the remaining factors, claimant argues that his delay is
excusable because he was denied access to a notary public. More specifically,
claimant indicates that Elmira's notary public scheduled for January 16, 2004
was cancelled and rescheduled for January 23, 2004. The court finds this excuse
unavailing. Claimant's ninety day period to file and serve this claim was due
to expire on January 17, 2004. It is claimant's own responsibility for waiting
until the end of his statutory period - one day before the expiration of his
deadline - to obtain notary service. Further, claimant makes no representation
regarding the availability or lack thereof of notary service within the facility
in the ninety days prior thereto. In any event, it was incumbent on claimant to
allow enough time for encountering trouble in preparing his notice of intention
or claim knowing full well that notary public service is not available 24 hours
a day/7 days a week in prison. Moreover, even if claimant had access to a
notary on January, 16, 2004 as scheduled, it is highly unlikely that service
could have been achieved within a day.
this court's view, this sequence of events is a good demonstration of the wisdom
behind the adage "leave time for trouble". (Siegel, NY Prac § 33, at 40
[3d ed]). Incarceration and all the normal conditions thereof which would
include access to notary public service have been rejected as an excusable
delay. (Hall v State of New York
, 85 AD2d 835; Plate v State of New
, 92 Misc 2d 1033, 1037-1038; Wallace v State of New York
, Ct Cl,
June 27, 2000, Read, P.J., Claim No. None, Motion No. M-61368 [UID No.
This factor weighs against
Notice of the essential facts, opportunity to investigate and lack of
substantial prejudice comprise the next three factors. Claimant does not
address these factors in his supporting papers. That having been said, the
State concedes that claimant reported this incident to correction officer D.
Carpenter on the date of the incident. As such, given the violent nature of
this incident, the court finds that the State had notice of the essential facts
and an opportunity to investigate the same. Additionally, the State's
indication that witnesses may no longer be available is speculative.
Accordingly, the court finds that these three factors weigh in claimant's favor.
The final factor is the availability of any alternate remedy of which claimant
asserts he has none. The State concedes the absence of any alternative remedy.
As such, this factor weighs in favor of claimant.
Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the
court finds that five of the six factors, including the all important factor of
merit, weigh in favor of claimant's request for permission to file a late claim
pursuant to CCA 10 (6).
In view of the foregoing, IT IS ORDERED that claimant's motion for permission
to permit the late filing and service of a claim, Motion No. M-68029, is
GRANTED. Claimant shall file a claim in the Office of the Clerk and serve a
copy of the claim upon the Office of the Attorney General within sixty (60) days
from the date of filing of this Decision & Order in the Office of the Clerk
of this Court. The service and filing of the claim shall be in conformity with
all applicable statutes and rules of the court including CCA 10, 11 and