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 had previously served and filed a
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
, 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
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.