New York State Court of Claims

New York State Court of Claims

MORALES v. THE STATE OF NEW YORK, #2006-032-058, Claim No. N/A, Motion No. M-71256


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:
Isaac Morales, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael W. Friedman, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
July 10, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


In January 2006, claimant filed claim 111817, alleging that he was the victim of an inmate-on-inmate assault at Upstate Correctional Facility on two separate occasions by different inmates. Claimant now seeks leave to file a late claim and appends a proposed claim identical to claim 111817. Defendant opposes this relief arguing, inter alia, that the proposed claim lacks merit. Defendant does not cross-move to dismiss claim 111817.

In October 2005, claimant alleges that he was attacked by another inmate due to this inmate's placement in the "draft". Claimant alleges that he was not the aggressor and that several officers stood by during the attack while claimant's safety was jeopardized. The second incident occurred in November 2005. Claimant alleges that his cellmate in the special housing unit assaulted him when claimant refused to give his cellmate his personal property upon his parole release.

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 presence or absence of any one factor is not determinative (see Bay Terrace Cooperative Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979 [1982]). Rather, it is a balancing of all of the factors by the Court which may warrant the granting of the application to file and serve a late claim (see id.).

Here, the allegations contained in this negligence claim are within the applicable limitations period (CPLR 214) and, therefore, the claim is not barred on this basis. Claimant, however, has other remedies available to him as he may bring suit against the inmates who allegedly assaulted him. Thus, this factor weighs in defendant's favor. Next, claimant's proffered excuse for his delay in bringing a claim, incarceration and ignorance of the law, are insufficient excuses for failing to bring a timely claim. Thus, this factor likewise weighs in defendant's favor. The Court considers the intertwined factors of notice, opportunity to investigate and prejudice together. Claimant argues that there are videotapes depicting the first attack, an investigative report prepared by correction officers regarding this attack and medical records regarding the second attack. With respect to the first attack, the Court determines that through these records defendant had notice of the incident and an opportunity to investigate the incident. Accordingly, no prejudice inures to defendant, and these factors weigh in claimant's favor.

For a claim to appear to be meritorious, it must not be patently groundless, frivolous, or legally defective and, after considering the proposed claim and supporting affidavits or exhibits, there must be reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]). On this type of claim, it is well-settled that claimant needs to demonstrate 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 (Sanchez v State of New York, 99 NY2d 247). As such, the Court's function on this late filing motion is to determine whether the proposed claim appears to fall within one of these parameters (Matter of Santana v New York State Thruway Auth., supra).

Claimant argues that in the first assault, correction officers saw claimant being attacked but did not immediately intervene and, as a result, he sustained further injury. Inasmuch as claimant alleges that the first attack went on while correction officers did not intervene, claimant has established there is a reasonable belief that a valid cause of action exists. Thus, the first attack has the appearance of merit. With respect to the second attack, claimant alleges only that he should not have been placed in a cell with his cellmate, a potentially violent inmate, and that claimant should have been placed with another parole violator. Claimant fails to allege that his cellmate had a violent history or that the nature of his first attack placed claimant at risk for further assault by a different inmate. As such, he has not met his burden with respect to the second attack and, therefore, it does not have the appearance of merit. Therefore, after balancing the requisite factors, the Court determines that leave to file a late claim is granted only with respect to the first attack and denied concerning the second attack.

Accordingly, claimant's motion M-71256 is granted in part and denied in part in accordance with this Decision and Order. Claimant is directed to file and serve his claim within 45 days from the date of filing this Decision and Order in the Clerk’s office, with such service and filing to be in accordance with the Court of Claims Act and the Uniform Rules for the Court of Claims.

July 10, 2006
Albany, New York

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion filed January 9, 2006;

2. Affidavit of Isaac Morales sworn to December 13, 2005; proposed claim annexed;

3. Affirmation of Michael W. Friedman filed February 23, 2006.