New York State Court of Claims

New York State Court of Claims

MARTINEZ v. THE STATE OF NEW YORK, #2004-019-529, Claim No. NONE, Motion No. M-68029


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:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
March 19, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


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 17, 2003.[1] 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 [6]).

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

the claim,

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.[2] (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, affd 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.[3] In 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 York, 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. 2000-001-030]).[4] This factor weighs against claimant.

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 11-a.

March 19, 2004
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with this motion:

  1. Notice of Motion No. M-68029, dated January 23, 2004, and filed January 29, 2004.
  2. Affidavit of Ferdinand Martinez, in support of motion, sworn to January 23, 2004, with attachments.
  3. Proposed Claim, sworn to January 23, 2004.
  4. Affirmation of James E. Shoemaker, AAG, in opposition to motion, dated February 26, 2004, and filed March 1, 2004, attached exhibit.

[1]The date of the incident is listed as October 17, 2003 in the Unusual Incident Report attached to the State's papers, while claimant reports the incident date as October 18, 2003. The court will use the date in the facility's records, namely October 17, 2003.
[2]Claimant was placed in involuntary protective custody.
[3]Service is deemed complete upon receipt by the office of the attorney general. (CCA 11 [a]).

[4]Unreported decisions from the court of claims are available via the Internet at