New York State Court of Claims

New York State Court of Claims

MARTIN v. THE STATE OF NEW YORK, #2006-032-042, Claim No. N/A, Motion No. M-71169


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:
Dante Martin, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Michael C. Rizzo, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
May 3, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves this Court for leave to file a late claim alleging that defendant was

negligent in allowing him to be assaulted in the north yard at Clinton Correctional Facility (Clinton). Defendant opposes this relief arguing, inter alia, the proposed claim does not have the appearance of merit.

Claimant's application contains a motion, notice of intention and an affidavit of service. [1] Claimant fails, however, to submit a proposed claim or affidavit in support of his application. The notice of intention states that on June 11, 2005, at approximately 8:00 p.m., claimant was assaulted in the north yard of Clinton. The motion states that claimant's delay is excusable because he is a layperson and his injuries prevented him from preparing his legal papers. Further, he states that defendant had notice and an opportunity to investigate the incident because medical and security personnel were aware of the occurrence.

In determining whether an application for permission to file a late claim should be granted, the Court must determine whether the claim would be timely under the applicable statute of limitations and then consider certain statutory factors. These factors are whether: (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable and (6) the claim appears to be meritorious (Court of Claims Act § 10[6]). The last factor is the most decisive factor inasmuch as it is futile to proceed with a meritless claim.

Given that claimant's assault occurred in June 2005, the three-year limitation period has not yet expired (CPLR 214). Next, claimant does not have another available remedy. Nonetheless, the Court determines that late claim relief is not warranted. Contrary to claimant's suggestion, delay caused by a pro se litigant's ignorance of the rules and procedures of the Court of Claims is not excusable (see P.A. v State of New York, 277 AD2d 671, 672 [3d Dept 2000]).

Further, mere conclusory allegations of physical incapacity do not present a reasonable excuse for delay (see Matter of Thomas v State of New York, 272 AD2d 650). The intertwined issues of notice, opportunity to investigate, and prejudice will be considered together. Although claimant's submissions allege that prison personnel were aware of claimant's injury, those persons are not identified and no incident reports or medical records were submitted. Under these circumstances it is clear that claimant has failed to demonstrate that the defendant received timely notice of the essential elements of the claim and was afforded an opportunity to investigate the circumstances underlying the incident. As such, the Court determines that defendant would be prejudiced if it now had to investigate the alleged assault by an unknown perpetrator.

With respect to merit, it is well settled that the State is not an insurer against accidents and the mere happening of an event does not render the State responsible for damages (see Sanchez v State of New York, 99 NY2d 247, 253). Typically a party must allege one of the following: (1) the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide reasonable protection; (2) the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act (id.). Here, claimant alleges in an unsworn letter that he was assaulted by an unknown assailant in the prison yard on a certain day and time. Without more, these allegations do not have the appearance of merit. As such, after balancing the relevant factors, the Court determines that late claim relief is not warranted.

Accordingly, claimant's motion M-71169 is denied.

May 3, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

1."Motion for Permission To File A Late Claim" filed January 12, 2006 with attachments;

2. Affidavit of Michael C. Rizzo sworn to January 30, 2006.

[1].There is no allegation that claimant timely served defendant with a notice of intention.