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 five other inmates while
playing basketball in the field house at Elmira Correctional Facility
(hereinafter "Elmira") on May 25, 2003, at approximately 3:00 p.m. More
specifically, claimant alleges he was slashed with a razor type weapon on his
face and neck requiring stitches and possible surgery. Further, claimant
alleges that he immediately reported the incident to a nearby correction
officer. Claimant failed to serve a notice of intention or file and serve a
claim within ninety days of the attack pursuant to CCA 10 and 11 and, as such,
seeks permission to file a late claim.
Initially, the court notes that it has the jurisdiction to review and determine
this motion, since it 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). (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).
In order to establish that his claim appears to be meritorious, claimant must
establish it is not patently groundless, frivolous, or legally defective and
that there is reasonable cause to believe that a valid claim exists.
(Id. at 11). With respect to inmate on inmate assaults, it is
well-settled that "[t]he mere occurrence of an inmate assault, without credible
evidence that the assault was reasonably foreseeable, cannot establish the
negligence of the State." (Sanchez v State of New York, 99 NY2d 247,
256). Stated another way, in order to establish liability at a trial, claimant
would need to demonstrate one of the following: (1) the State knew or should
have known that claimant was at risk of being assaulted and yet failed to
provide reasonable protection; (2) the State knew or should have known that the
assailant was prone to perpetrating such an assault and the State did not take
proper precautionary measures; or (3) the State had ample notice and opportunity
to intervene but did not act. (Sanchez, 99 NY2d 247). As such, the
court's function on this late filing motion is to determine whether there is
reasonable cause to believe a valid cause of action exists. (Santana, 92
Misc 2d at 11-12).
Here, claimant focuses on the failure of the nearby officers to intercede in
the attack as it was occurring or to conduct adequate searches for weapons prior
to the attack. However, claimant has not identified his assailants nor has he
alleged any fact or circumstance from which the court could conclude that the
State was aware or should have been aware of any specific as opposed to a
general threat of harm to him prior to this attack. (Bailey v State of New
, Ct Cl, July 13, 2000, McNamara, J., Claim No. None, Motion No. M-61591
[UID No. 2000-011-544]; Lucas v State of New York
, Ct Cl, July 9, 2001,
Ruderman, J., Claim No. None, Motion No. M-63163 [UID No.
Consequently, although there
is no doubt that an assault took place as described by claimant, the court finds
that claimant has failed to establish his proposed claim appears to be
meritorious within the meaning of CCA 10 (6).
With respect to the remaining factors, claimant argues that his delay is
excusable because he is a layperson and was in the process of exhausting his
administrative remedies. Ignorance of the law is not an acceptable excuse.
(Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654).
Claimant's reference to the exhaustion of administrative remedies is meaningless
since there is no such requirement prior to commencing this type of claim. This
factor weighs against claimant.
Notice of the essential facts, opportunity to investigate and lack of
substantial prejudice comprise the next three factors. Claimant alleges that
the State had both notice and an opportunity to investigate due to the presence
of correction officers at this incident. The State concedes the assault was
reported on the same day, but argues that claimant's unwillingness - or
inability - to identify his assailants made investigation difficult and
prejudice likely. In view of claimant's prompt notification of this incident,
the court finds these three factors favor claimant.
The final factor is the availability of any alternate remedy of which claimant
asserts he has none. The State argues that claimant could file criminal charges
against his attackers if he chooses to identify them. Alternate remedies that
are so remote in likelihood of success have been rejected. (Roman v State of
New York, Ct Cl, August 14, 2000, Bell, J., Claim No. None, Motion No.
M-61933 [UID No. 2000-007-045]. Accordingly, this factor weighs in favor of
Upon reviewing and balancing all of the factors enumerated in CCA 10 (6), the
court finds that two of the six factors, including the all important factor of
merit, weigh against 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-68049, is