New York State Court of Claims

New York State Court of Claims

SERRANO v. THE STATE OF NEW YORK, #2006-009-016, Claim No. NONE, Motion No. M-70655


Claimant's motion for late claim relief was granted.

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:
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
March 13, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant has brought this motion seeking permission to serve and file a late claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation of Andrew F. Plasse, Esq., Affidavit of Benjamin Serrano, with Exhibits (including Proposed Claim as Exhibit B) 1,2,3

Affirmation (in Opposition) of Timothy P. Mulvey, Esq., Assistant Attorney General 4

Reply Affirmation, with Exhibit 5

In his proposed claim, claimant seeks damages for personal injuries allegedly suffered by him in an inmate-on-inmate assault which occurred on September 9, 2002, when claimant was incarcerated in the Special Housing Unit (SHU) of Auburn Correctional Facility. Claimant alleges negligent supervision in the recreation yard where the assault occurred, as well as negligence against the State in allowing claimant's assailant (inmate Hector Matos) to be in the same area with claimant.

Claimant had previously served and filed a claim[1] based upon the same incident, seeking the identical relief as set forth in his proposed claim. By a Decision and Order dated April 21, 2004[2], however, this Court granted defendant's pre-answer motion for an order of dismissal, based upon untimely service of the claim. Claimant has now brought this timely application[3] seeking permission to serve and file a late claim.

In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in § 10(6) of the Court of Claims Act. The factors set forth 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 file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim (see, Matter of Gavigan v State of New York, 176 AD2d 1117).

With regard to excuse, claimant's attorney, upon information and belief, asserts that claimant had timely served a notice of intention to file a claim within 90 days of the incident, but that the certified mail receipt evidencing such service has been lost or misplaced. Without such proof, or an admission from the Attorney General acknowledging service, however, the Court cannot find that claimant has established an acceptable excuse for his failure to timely serve and file a claim herein. The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. Following this incident, an Unusual Incident Report was prepared describing the assault in detail, as well as the actions taken by correction officers (see Exhibit D to Items 1,2,3). This Unusual Incident Report establishes that the defendant had actual notice of the fact that claimant had been injured in an inmate assault on the date of the incident, September 9, 2002. It is apparent, therefore, that the State did have timely notice of the essential facts which provide the basis of this claim, and that the State had a sufficient opportunity to conduct an investigation into the circumstances surrounding the incident.

Furthermore, the State was served with a claim based upon this incident on August 19, 2003 (Claim No. 108150), and even though not timely, the State was provided with notice, prior to this application, that claimant did intend to pursue this matter in the Court of Claims.

Accordingly, the Court finds that the State would not be prejudiced in its defense of this claim should this application be granted.

The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). In order to establish a meritorious cause of action, claimant has the burden to show that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1).

In this particular matter, claimant asserts that he was a known risk of assault, since he alleges that the Latin Kings Gang had previously ordered a "hit" against him. Claimant also alleges that his assailant had a propensity for violence of which the State had prior notice.

Although these two allegations are strenuously disputed by defendant's counsel in his affirmation opposing this motion (see Item 4), for purposes of a late claim application under § 10(6), a claimant need not establish a prima facie case, but must only show that his claim has the appearance of merit (Santana v New York State Thruway Auth., supra). Based on the contentions set forth by claimant in this application, the Court finds that claimant has made a sufficient showing as to the appearance of merit.

It does not appear that claimant has any other available remedy.

Accordingly, after a review of the papers submitted herein, and after weighing and considering all of the factors set forth under Court of Claims Act §10(6), it is the opinion of this Court that claimant should be allowed to serve and file his proposed claim.

Accordingly, it is

ORDERED, that Motion No. M-70655 is hereby GRANTED; and claimant is directed to file and serve his proposed claim, properly verified, within 45 days from the date of filing of this decision and order in the Clerk's office, with such service and filing to be in accordance with the Court of Claims Act, with particular reference to Sections 10, 11 and 11-a, and the Uniform Rules for the Court of Claims.

March 13, 2006
Syracuse, New York

Judge of the Court of Claims

[1] See Claim No. 108150.
[2] See Decision and Order to Motion No. M-67364.
[3] Pursuant to Court of Claims Act § 10(6) a late claim application may be brought "at any time before an action asserting a like claim against a citizen of the state would be barred under the provision of article two of the civil practice law and rules." An application for late claim relief based upon allegations of negligence, such as the proposed claim herein, must therefore be submitted within three years from the date of the incident forming the basis of the claim (CPLR § 214). Since the incident forming the basis of this claim occurred on September 9, 2002, and this application was served upon the Attorney General on September 2, 2005, and filed with the Clerk of the Court of Claims on September 6, 2005, such application is timely (Rydeberg v State of New York, 108 Misc 2d 362; Jenkins v State of New York, 119 Misc 2d 144).