New York State Court of Claims

New York State Court of Claims

ORTIZ v. THE STATE OF NEW YORK, #2006-015-133, Claim No. NONE, Motion No. M-72088


Late claim relief granted for injuries sustained in an inmate-on-inmate assault.

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:
Marcus A. Ortiz, Pro Se
Defendant’s attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 13, 2006
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 damages for personal injuries sustained when movant was assaulted by a fellow inmate on July 28, 2005 at the Great Meadow Correctional Facility in Comstock, New York. Movant alleges in his proposed claim that the State "disregarded its duty by negligently and carelessly permitting another inmate out of his cell while the claimant was on the company, in his official capacity as a Law Library Clerk, at the Great Meadows [sic] Correctional Facility." At the time of the assault, movant was delivering and picking up legal materials from the inmates housed on the B-2 disciplinary unit which, according to the movant, "serves as Great Meadow's Long Term Keeplock Company and SHU overflow". In support of his motion movant submitted an interdepartmental communication indicating that for security reasons "Inmate Law Clerks are not allowed to pick up anything from inmates on the company" and that any law books for return to the library must be placed on the cell bars for pick up by the company officer. Movant contends that on the date of the assault he was required to pick up law books from the inmates' cells in violation of the direction set forth in the interdepartmental communication. As a result of the assault, movant suffered a fractured jaw and facial lacerations requiring approximately 11 stitches. 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. Subdivision 6 of Section 10 requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." Since the proposed claim asserts a negligence cause of action, the three year Statute of Limitations set forth in CPLR § 214 applies. Movant's motion is therefore timely.
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 nor 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 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. On the issue of notice, the movant filed an unverified claim on August 22, 2005. The claim was served upon the Attorney General by certified mail, return receipt requested on August 24, 2005. The Attorney General promptly returned the unverified claim and notified the movant of the reason for its return. In response movant served a verified claim upon the Attorney General by certified mail, return receipt requested, which was received on September 8, 2005. Movant, however, failed to file the verified claim with the Clerk of the Court as required by Court of Claims Act § 11. In its answers to both claims, the defendant raised the defense that the claim was defective as it was unverified. The claim was dismissed by a decision and order of this court dated July 19, 2006 without prejudice to an application for late claim relief pursuant to Court of Claims Act § 10(6). This motion promptly followed.

Movant has established that the State had notice of the claim within thirty days following the occurrence of the events complained of. Movant also sustained a fractured jaw, among other injuries, which required immediate medical attention. The foregoing facts demonstrate that the State had prompt notice of the incident and an opportunity to investigate thereby obviating any prejudice to the State arising from movant's delay (Lockwood v State of New York, 267 AD2d 832).

With respect to the required showing of merit, the claim is sufficiently established if the movant demonstrates "that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists" (Fowx v State of New York, 12 Misc 3d 1184 2006, NY Slip Op 51399(u) [2006]).
It is settled that the State has a duty to use reasonable care in protecting its inmates from foreseeable risk of harm, including the risk of attack by fellow inmates (Sanchez v State of New York, 99 NY2d 247; Gangler v State of New York, 302 AD2d 964). In the proposed claim movant alleges that it was a violation of facility rules for more than one inmate to be out of his cell at one time in this particular housing unit. In addition, the movant submitted in support of his motion the interdepartmental communication which he claims was violated with respect to the procedure employed in the pick-up and delivery of legal materials. For the purposes of this motion, the movant has sufficiently established that the claim is neither patently groundless nor frivolous. 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.

November 13, 2006
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 28, 2006;
  2. Affidavit of Marcus Ortiz sworn to July 28, 2006, with exhibits;
  3. Affirmation of Michael W. Friedman dated August 24, 2006 with exhibit;
  4. Amended notice of motion dated August 9, 2006 with exhibit;
  5. Response of Marcus A. Ortiz dated August 9, 2006 with exhibits.