New York State Court of Claims

New York State Court of Claims

WILKINS v. STATE OF NEW YORK, #2006-018-543, Claim No. NONE, Motion No. M-71707


Late claim application 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:
WHARTON & GARRISON LLPBy: Kristy Tillman, Esquire
Defendant’s attorney:
Attorney General of the State of New York
By: Heather R. Rubinstein, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 8, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Movant brings a motion seeking permission to file a late claim for injuries allegedly

sustained as a result of the failure of the State to protect him from an assault at Five Points Correctional Facility. Defendant opposes the motion.

Court of Claims Act § 10(6) allows a movant who has failed to properly serve a notice of intention or who has failed to file and properly serve a claim within the time frame set forth in Court of Claims Act § 10, to make an application to the Court to file such a claim, in the discretion of the Court, at any time before an action asserting a like claim against a citizen of the State would be barred under article two of the CPLR. (Court of Claims Act § 10[6]). Movant’s motion is timely (Court of Claims Act § 10[6]; CPLR § 214[5]).

Turning to the factors in the statute, the first, whether the delay in filing the claim is excusable weighs against granting Movant’s application. Movant asserts that after he was assaulted, he was placed in protective custody until he was moved to Great Meadow Correctional Facility on July 29, 2005. When he arrived at Great Meadow, he was kept in “keep lock” for a week after his arrival. He was, therefore, not able to utilize the services of a notary between May 9, 2005 and August 5, 2005. Movant did serve a notice of intention on the Assistant Attorney General on August 8, 2005, but the Assistant Attorney General treated it as a nullity and returned it to him the same day because it was not notarized.

Defendant submits the affidavit of Correction Officer James Battisti, which provides that inmates confined to protective custody can make a written request for notary services every day. Once received by the Law Library, a notary will be provided usually within five calendar days.

Conclusory allegations that based upon his incarceration, Movant was unable to timely get his notice of intention notarized, is not an acceptable excuse (see Sandlin v State of New York, 294 AD2d 723; Matter of Thomas v State of New York, 272 AD2d 650; Matter of Sevilla v State of New York, 145 AD2d 865).

The factors of whether the State had notice of the essential facts, an opportunity to investigate the underlying claim, and whether the State will suffer substantial prejudice if the late filing and serving of the claim are permitted will all be addressed together. These factors all weigh in favor of granting the application. Undisputed by Defendant, Movant served a timely notice of intention upon the Assistant Attorney General which, although returned because it was not notarized, provided timely notice of the underlying facts of the potential claim. Timely notice permits the opportunity to investigate. As a result, no prejudice will result from the granting of this application.

The next factor, whether the claim appears to be meritorious, is often referred to as the most essential factor. Generally, a proposed claim meets this standard if it is not patently groundless, frivolous, or legally defective, and upon consideration of the entire record, there is cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1,11). Movant asserts that on May 9, 2005, he was attacked by members of the “Blood” gang causing serious injuries to his face during “go-back” time at the correctional facility. Movant alleges that he had been threatened with bodily harm by gang members and had advised the State on numerous occasions of his concerns, including requesting protective custody. He was placed in protective custody for a period of time, but was then returned to his same housing unit and cell block where some of his known enemies also resided. Movant has set forth a potentially valid cause of action. “Having assumed physical custody of inmates...the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates” (Sanchez v State of New York, 99 NY2d 247, 252-253; Flaherty v State of New York, 296 NY 342; Dizak v State of New York, 124 AD2d 329, 330). Yet, the State does not insure the safety of its inmates. The State’s duty requires only that it protect inmates from the risks of harm that are reasonably foreseeable (Sanchez, 99 NY2d at 255). Based upon Movant’s allegations, the State may have had notice that Movant was at risk of being assaulted. Movant’s supporting documents set forth facts which suggest he may have a meritorious cause of action.

The final factor is whether the Movant has any other available remedy. Movant clearly has no other remedy.

Upon balancing all of the factors in Court of Claims Act § 10(6), the Court grants Movant’s motion. Movant is directed to pay the filing fee in accordance with Court of Claims Act § 11-a, file and serve the proposed claim, properly verified, within forty-five (45) days of the date this Decision and Order is filed. Service and filing of the claim shall be in conformity with all applicable statutes and Court rules.

December 8, 2006
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

Notice of Motion.............................................................................................1

Affidavit of Kristy Tillman, Esquire in support of motion, sworn to

May 8, 2006, with exhibits attached thereto........................................2

Affirmation in opposition of Heather R. Rubinstein, Esquire, Assistant

Attorney General with exhibit attached thereto....................................3

Reply affirmation of Kristy M. Tillman, in support..........................................4