New York State Court of Claims

New York State Court of Claims

FORD v. THE STATE OF NEW YORK, #2004-019-532, Claim No. NONE, Motion No. M-68049


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:
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
April 2, 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 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 [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). (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 York, 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. 2001-010-046]).[1] 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 claimant.

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 DENIED.

April 2, 2004
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with this motion:
  1. "Motion For Permission To File A Late Claim", Motion No. M-68049, dated January 19, 2004, and filed February 9, 2004.
  2. Proposed Claim, dated January 29, 2004.
  3. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated March 17, 2004, and filed March 22, 2004, with attached exhibits.

[1]Unreported decisions from the Court of Claims are available via the Internet at

[2]Claimant submitted this "motion to dismiss" after the return date, however, the court finds no prejudice in accepting the late submission. (CPLR 2214 [c]). Moreover, the court has treated this paper as a responsive paper to this motion.