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
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.,
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