After carefully considering the papers submitted and the applicable law the
motion is disposed of as follows:
In the proposed Claim, Claimant indicates that on August 14, 2002, at
approximately 4:20 p.m., while he was returning to his housing block from
"chow", he was assaulted by a fellow inmate at Downstate Correctional Facility
(hereafter Downstate) and suffered serious injury. He alleges that a particular
correction officer did not protect him from the assault, and failed to properly
discharge his duty to protect Claimant as a correction officer. Claimant states:
"It was the duty of the State of New York to protect . . . [Claimant] under the
Eighth Amendment: to be free from assult, and to protect that my injuries were
the cause of the failure to act . . . It is the states duty of being and
acting responcable, where officer Mr. Jeffrey M. Vanarnum failed to act within
his professional standards, failed to protect from dangers that may occure in a
prison. It is owed to me, Danny Lee Carter to be free from assult while in the
custody of the State of New York department of Corrections (sic)."
[Claim, Page 2].
Claimant indicates that the delay in filing the claim is excusable because he
had hired an attorney "Nine (9) days after my incident and eleven (11) months
later, he wrote and told me he wouldn't continue my case because he didn't feel
he would get a worthwile recovery. I was under the impression that he had
submitted the Notice of intent (sic)." [Motion for Permission to File a
Late Claim, ¶2]. The name and address of the attorney is set forth, but
Claimant does not provide a copy of the letter he describes. Claimant states he
has no other available remedy.
In her Affirmation in Opposition the Assistant Attorney General argues that the
proposed claim does not have the appearance of merit as required, nor does the
Claimant advance a reasonable excuse for the delay. Specifically, Claimant does
not indicate how the State of New York - through its agents - was negligent.
While the State must provide inmates with reasonable protection against
foreseeable risks of attack by other inmates [Blake v State of New York
259 AD2d 878 (3d Dept 1999); Sebastiano v State of New York
, 112 AD2d 562
(3d Dept 1985)], the State is not the insurer of the safety of inmates, and the
fact that an assault occurs does not give rise to the inference of negligence.
Sebastiano v State of New York
. In order to establish
liability on the State's part, an inmate claimant must allege and prove that the
State knew or should have known that there was a risk of harm to the Claimant
that was reasonably foreseeable and inadequately addressed. Sanchez v State
of New York
, 99 NY2d 247, 253 (2002), see also
, Flaherty v State
of New York
, 296 NY 342, 347 (1947). The Court must look to see if the
actions taken by the State were reasonable under the circumstances. The mere
fact that a correction officer is not present at the precise time and place of
an assault, for example, does not give rise to an inference of negligence
absent a showing that officials had notice - actual or constructive - of a
foreseeable dangerous situation. Colon v State of New York
, 209 AD2d 842
(3d Dept 1994); Padgett v State of New York
, 163 AD2d 914 (4th Dept
1990), lv denied
76 NY2d 711 (1990); Huertas v State of New York
84 AD2d 650 (3d Dept 1981).
". . .
[U]nremitting supervision . . . " is not required. Colon v State of New
, at 844.
The Attorney General argues that Claimant does not indicate in his proposed
claim, among other things, that he had made correction officers aware of any
hostility between him and his assailant, that the assailant was known to be
dangerous generally, or that officers failed to intercede during the assault or
were not present at their posts. Claimant alleges that a Mr. Jeffrey Vanarnum
failed to protect Claimant from the assault, but does not indicate who Mr.
Vanarnum is or how he failed to meet any duty owed to Claimant. Indeed, in a
letter written by the Claimant to correctional facility personnel dated August
20, 2002, it would appear that the assailant or assailants were strangers to
Claimant at the time he sought to "press charges". [See Affirmation in
Opposition, Exhibit 1].
In order to determine an application for permission to serve and file a late
claim, the Court must consider, "among other factors," the six factors set
forth in §10(6) of the Court of Claims Act. The factors stated therein
are: (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 meritorious; (5) whether substantial prejudice
resulted from the failure to timely serve upon the Attorney General a claim or
notice of intention to file a claim, and the failure to timely file the claim
with the Court of Claims; and (6) whether any other remedy is
The Court is afforded considerable
discretion in determining whether to permit the late filing of a claim. See
e.g. Matter of Gavigan v State of New York
, 176 AD2d 1117, 1118 (3d
Dept 1991). The presence or absence of any particular factor is not dispositive
Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement
System Policemen's & Firemen's Retirement System
, 55 NY2d 979, 981
(1982); Broncati v State of New York
, 288 AD2d 172 (2d Dept 2001).
Additionally, the motion must be timely brought in order to allow that a late
claim be filed ". . . at any time before an action asserting a like claim
against a citizen of the state would be barred under the provisions of article
two of the civil practice law and rules . . . " Court of Claims Act §
10(6). Here, the applicable statute of limitations is three (3) years, thus the
motion is timely. Civil Practice Law and Rules §214.
A claim appears to be "meritorious" within the meaning of the statute if it is
not patently groundless, frivolous or legally defective and a consideration of
the entire record indicates 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). Claimant need not establish a prima
facie case at this point, but rather the appearance of merit. See
e.g. Jackson v State of New York, Claim No. NONE, Motion No. M-64481
(Midey, J., February 28, 2002).
His mere incarceration, and movement within the system, and the asserted loss
of representation by counsel, does not constitute a reasonable excuse, given the
failure to provide substantiating information concerning counsel's withdrawal.
There must be some showing that the circumstances of his incarceration prevented
claimant from taking effective steps to perfect his claim, or contact another
attorney. Bommarito v State of New York, 35 AD2d 458, 459 (4th Dept
1971). Claimant has made no such showing, thus this factor weighs against him.
The absence of an excuse, however, is but one of the factors to be considered,
and does not necessarily preclude relief. Bay Terrace Coop. Section IV, Inc.
v New York State Employees' Retirement System Policemen's & Firemen's
Retirement System, supra.
The closely related factors of notice, opportunity to investigate and prejudice
to the State, considered together, weigh toward granting Claimant's motion. Any
pictures or other documentation of the incident would presumably be maintained
by Defendant's agents. The passage of time has not been so great that the
State's ability to investigate is impeded to its prejudice. Cf. Edens
v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and two
and one-half months from date of accrual). Accordingly, these
factors weigh in favor of granting the motion.
As noted, Claimant need not establish his claim prima facie, but rather
show the appearance of merit. Jackson v State of New York, supra.
If the allegations in the claim are accepted as true for the purposes of the
motion, Claimant has nonetheless not made the requisite showing of merit in
order to permit late filing of his claim.
In order to establish the State's negligence premised upon a failure to protect
an inmate from an assault by a fellow inmate, the Claimant must allege and prove
the elements noted above. Claimant has not alleged any of the requisite
elements and has only recited - in the most general language - that the State
had a duty to protect him from ". . . dangers that may occure in a prison . . .
(sic)." [Claim, Page 2]. He has not, therefore, established the
appearance of merit of his claim against the State of New York.
Accordingly, Claimant's Motion Number M-69063 for permission to serve and file
a late claim is hereby denied in all respects.