New York State Court of Claims

New York State Court of Claims

TISLON v. THE STATE OF NEW YORK, #2004-031-139, , Motion No. M-66760


Motion for permission to file late claim is granted in part

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:
New York State Attorney General
BY: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 1, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on motion by Claimant for permission to file a late claim:
  1. Notice of Motion, filed May 2, 2003;
2) Claimant's Affidavit, sworn to April 22, 2003, with attached exhibits;
3) Affirmation of Timothy P. Mulvey, dated July 16, 2004, with attached exhibits;
4) Claimant's unsworn statement dated September 11, 2004,with attached exhibits;
5) Filed Documents: Decision and Order (M-66760), filed November 3, 2003; Decision and Order (M-67762), filed June 30, 2004. PROCEDURAL BACKGROUND

With this motion, the Court considers, for the second time, Mr. Tislon's application for permission to file a late claim. Previously, with motion (M-67762), I granted Defendant's application to vacate an earlier decision, filed on November 3, 2003, which granted this motion (M-66760) for permission to file a late claim. Claimant subsequently filed claim 108638 on December 11, 2003. I vacated the previous decision because Defendant demonstrated that Claimant had failed to serve Defendant with the underlying motion papers, thereby denying Defendant the opportunity to oppose the motion. I reinstated this motion, rather than have Claimant file a new motion to avoid potential prejudice to Claimant relating to the timeliness of his application for late claim relief. I also stayed any further proceedings on claim 108638, pending resolution of this motion.
In his proposed claim, Mr. Tislon seeks to recover $75,000.00 for injuries he sustained when he was assaulted by another inmate at Five Points Correctional Facility on February 5, 2001. Claimant also alleges that Defendant negligently failed to protect him from subsequent assaults, and that his eighth amendment rights were violated by Defendant's deliberate indifference to his need for safety. Finally, Claimant alleges that his right to due process was violated in his Tier II disciplinary hearing relating to that February 5, 2001 incident.

Subdivision 6 of § 10 of the Court of Claims Act ("CCA") enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. This list is not exhaustive and the presence or absence of any one factor is not dispositive. Rather, the Court in its discretion balances these factors in making its determination (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979).

With regard to his excuse for the delay in filing, Claimant alleges that the copy machine at Five Points Correctional Facility was broken during the last two weeks of his two-year window to file a timely claim. While this may be true, had Claimant not waited until the eleventh hour to file his claim, this would not have been a problem. I find that this factor, therefore, weighs in Defendant's favor.

With regard to alternative remedies, it appears that Claimant's only means of redress is an action against the State and this factor weighs in Claimant's favor.

The next three factors covering notice, opportunity to investigate and prejudice are closely related and may be considered together (Brewer v State of New York, 176 Misc 2d 337, 342). Claimant alleges that he served a timely notice of intention to file a claim and that the incident was reported, investigated and the subject of a disciplinary hearing. This appears to be true as it relates to the assault upon Claimant of February 5, 2001 and Claimant's subsequent complaints regarding his due process rights during the resulting disciplinary hearings. The notice of intention did not mention any other incidents, however, and there is no indication that Defendant had knowledge of, or the opportunity to investigate, any of the other incidents alleged in the proposed claim. For this reason, I find that these factors weigh in Claimant's favor only with regard to the alleged February 5, 2001 assault and the related disciplinary hearing. With regard to all other matters alleged in the claim, these factors weigh in Defendant's favor.

With regard to merit, generally, a proposed claim meets the appearance of merit standard if it passes a two-fold test. It must not be patently groundless, frivolous or legally defective and, upon consideration of the entire record, there must be reasonable cause to believe a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1).

Claimant has failed to adequately explain, let alone demonstrate, the merit of any cause of action relating to the alleged conspiracy against him relating to his misbehavior reports and his subsequent disciplinary hearing and appeals. For this reason, this portion of his proposed claim lacks merit and is denied. Further, although Claimant alleges that the various individuals identified violated his eighth amendment rights, such claims are conclusory, and Claimant has failed to allege sufficient factual support relating to these allegations. In any case, a cause of action under the Federal Constitution is not cognizable in this Court (see Ferrer v State of New York, 172 Misc 2d 1, 5; Gill v State of New York, Ct Cl, January 10, 2001 [Claim Nos. 95917 and 96180], Mignano, J., UID # 2001-029-042).

With regard to his cause of action for illegal confinement, I note that Defendant's submissions indicate that Claimant was "keeplocked" or confined to his cell for 30 days ending on March 7, 2001. Claimant originally filed his motion on May 2, 2003, more than two years after the proposed claim accrued. I note that permission to late file may not be granted unless a like action against a citizen would not be barred by the applicable statute of limitations (Court of Claims Act §10[6]). As Claimant's proposed cause of action for illegal confinement would be untimely under CPLR 215(3), it is, therefore, beyond the remedial reach of Court of Claims Act § 10 (6) (see Bardi v Warren County Sheriff's Dept., 260 AD2d 763, 764; Coyne v State of New York, 120 AD2d 769). For this reason, Claimant's request to file a late claim for illegal confinement must be denied.

What remains is Claimant's alleged cause of action relating to the assault upon him on February 5, 2001. Defendant argues that Claimant's allegations of notice are insufficient to hold Defendant liable for the subsequent assault. Defendant cites the case of Johnson v State of New York (Ct Cl, December 3, 2003 [Claim No. 103166], Hard, J., UID #2003-032-523) for this contention. I note that, in the Johnson case, the claim was dismissed after a trial. The court in that case also noted a correction officer's testimony that indicated that if the claimant had complained to him, he would have taken immediate action to investigate.

As a general proposition, a claim of negligence against the State arising from an inmate assault on another inmate may be predicated on one of the following three grounds: (1) the victim was a known risk and the State failed to provide reasonable protection; (2) the State had notice that the assailant was particularly prone to committing such an assault and failed to take proper precautionary measures; or (3) the State had ample opportunity to intervene in the assault but failed to act (see Huertas v State of New York, 84 AD2d 650).

Here, Claimant alleges that the State was negligent in failing to prevent an attack on Claimant by failing to remove him from a dangerous situation and after he notified Defendant that he feared for his life. If his allegations are true, the State may be liable for failing to prevent the assault (Sebastiano v State of New York, 112 AD2d 562; Littlejohn v State of New York, 218 AD2d 833).

Whether the circumstances surrounding the notice to Defendant of Claimant's fearing for his life and his request to be moved away from his cellmate were enough to put Defendant on notice that steps needed to be taken to prevent the assault are questions of fact that must be resolved at a later time. While the standard referred to above for establishing merit in a late claim application clearly places a heavier burden on a party who fails to comply with the statutory requirements, it does not require a claimant to overcome all objections, nor does it suggest that the Court should engage in the kind of fact-finding that would ultimately be necessary to adjudicate the actual merits of the case (Matter of Santana v New York State Thruway Auth., supra, at 11-12 ). I find that, for the purposes of this application, Claimant has met the threshold for establishing that his claim relating to the February 5, 2001 assault has the appearance of merit.

Upon reviewing and balancing all of the factors enumerated in CCA 10 § (6), I find that they weigh in favor of granting Claimant's motion for permission to file a late claim.

Based upon the foregoing it is hereby:

ORDERED, that Claimant's motion for permission to file a late claim in this matter is granted in part. Claimant, having previously filed claim number 108638, is not required to file a new claim, but that portion of claim 108638 which asserts a cause of action for illegal confinement is hereby stricken; and it is further

ORDERED, that the stay of proceedings related to claim 108638 is hereby removed. Defendant shall have 40 days from the filed date of this decision and order to file an answer to claim 108638 as modified by this decision and order.

November 1, 2004
Rochester, New York

Judge of the Court of Claims