New York State Court of Claims

New York State Court of Claims

RAMOS v. THE STATE OF NEW YORK, #2005-015-053, Claim No. None, Motion No. M-70658


Court granted late claim application by inmate assaulted by cell mate alleged to have violent propensities known to correctional facility officials.

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:
Ronemus & VilenskyBy: Michael B. Ronemus, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
October 27, 2005
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant's application for late claim relief is granted upon the condition that a claim complying with the requirements of Court of Claims Act § 11 (b) is filed and served within 45 days of the date on which this decision and order is filed.

The proposed claim seeks to recover $2,000,000 in damages for personal injuries sustained when movant, who was sleeping, was assaulted by his cell mate (Espada) on September 19, 2003 at Upstate Correctional Facility Malone, New York. Movant alleges that the State was negligent, careless and reckless in allowing and permitting him to be attacked by a fellow inmate (Espada) known to have violent propensities. Defendant opposed the motion on the grounds that movant's excuse for the delay in serving and filing the claim is not acceptable and that movant's allegation that he provided verbal and written notice of Espada's dangerous propensities to DOCS personnel in advance of the attack is not supported on the motion.

Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following factors: "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether 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, whether the claimant has any other available remedy".

The first issue for determination upon a late claim motion is whether the application is timely. Since the proposed claim appears to assert a negligence cause of action, the three year Statute of Limitations set forth in CPLR § 214 applies and the motion is properly before the Court.

Turning to the statutory factors, this Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965), and the statutory factors are not exhaustive or one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Savino v State of New York, 199 AD2d 254).

The excuse advanced by movant for the failure to timely serve and file a claim with respect to the September 19, 2003 assault is his ignorance of applicable legal requirements. Ignorance of the law is not an acceptable excuse (Griffin v John Jay College, 266 AD2d 16) and this factor weighs against granting the motion.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Movant alleges that as a result of the assault he sustained a fracture of his left orbit, among other injuries. He further alleges that photographs were taken at the prison following the incident and that he was thereafter transported to the Alice Hyde Hospital Emergency Room and Albany Hospital [sic] for treatment. These allegations were not refuted by the defendant and, under these circumstances, the Court finds that the factors of notice, opportunity to investigate and lack of prejudice favor granting the motion.

As to the appearance of merit, the movant must only demonstrate that the proposed claim is not "patently groundless, frivolous or legally defective" and "there is a reasonable cause to believe a valid cause of action does exist" (Rosenhack v State of New York, 112 Misc 2d 967, 969, 970).

It is settled that the State has a duty to use reasonable care to protect its inmates from foreseeable risks of harm, including foreseeable risks of attack by fellow inmates (Sanchez v State of New York, 99 NY2d 247; Colon v State of New York, 209 AD2d 842). In the proposed claim movant alleges that he complained verbally and in writing to prison employees concerning his assailant's violent tendencies and his fear of being injured by Espada. In the Court's view these allegations are sufficient to establish the apparent merit of the proposed claim (see Ferrari v State of New York, Ct Cl, July 13, 2000 [Claim No. None, Motion No. M-61586, UID # 2000-011-550] McNamara, J., unreported).

As to the final factor, while movant could have instituted a civil action for battery against his assailant such an action would have had to be commenced within one year of the event. It does not appear that movant has any other remedy available at this time.

Consideration of all of the statutory factors leads this Court to grant the motion.

October 27, 2005
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated September 1, 2005;
  2. Affirmation of Michael B. Ronemus dated September 1, 2005 with exhibits;
  3. Affirmation of Glenn C. King dated September 27, 2005.