New York State Court of Claims

New York State Court of Claims

BENNEFIELD v. THE STATE OF NEW YORK, #2007-013-035, , Motion No. M-73782


In an application for a late claim, an excuse alleging mental illness/disorder must be supported by something more than an old treatment plan review and does not establish the disability of insanity (CPLR 208, CCA §10[5]). Coupled with the absence of the appearance of meritoriousness, late claim is denied.

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:
Defendant’s attorney:
Attorney General of the State of New York
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 11, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


On September 19, 2007, the following papers were read on motion by Claimant for permission to file a late claim:

Notice of Motion, Affidavit and Exhibits Annexed

Affidavit in Opposition and Exhibit Annexed

Reply Affidavit

Upon the foregoing papers, this motion is denied.

Claimant seeks permission to file a late claim pursuant to Court of Claims Act §10(6). His proposed claim, attached as Exhibit A, describes the underlying events. The proposed claim alleges that on October 10, 2006, at about 8:20 p.m. in the B-Block yard at Wende Correctional Facility Claimant was assaulted by a fellow inmate (Townsend) and sustained injuries including a laceration on his face and neck from the use of what is described as a razor type weapon.

Preliminarily, I address the timeliness of the papers before me. This motion was filed on July 25, 2007, and the Clerk of the Court made it returnable on September 19, 2007. The notice of motion demanded that answering papers be served at least five days prior to the return date of the motion. By letter dated September 18, 2007, the Defendant transmitted its answering papers, which were filed with the Clerk on the return date of September 19, 2007. By letter dated September 24, 2007, Claimant mailed his reply papers, which were filed with the Clerk on September 27, 2007. Rather than reinvent the wheel, I will consider all filed papers relative to this motion, as described above, to have been timely.

Claimant also filed an application for a reduced filing fee pursuant to CPLR 1101(f), a motion that will be considered independently, only in the event that permission to file a late claim is granted. However, as part of that application, Claimant has sought to have the Court assign a suitable attorney to prosecute this action on his behalf. The appointment of counsel is discretionary (Matter of Smiley, 36 NY2d 433; Stephens v State of New York, 93 Misc 2d 273). For litigants in private litigation, absent statutory provision therefor, as in the instant claim which seeks damages, inter alia, for Defendant’s alleged negligence relating to an assault upon Claimant by a fellow inmate, there is no power in the courts to direct the provision of counsel or to require the compensation of retained counsel out of public funds (Matter of Smiley, 36 NY2d 433, supra). Accordingly, to the extent that the assignment of counsel is sought, it is denied.

The proposed claim alleges, inter alia, that the Defendant (1) failed to take reasonable action and precautions by not utilizing a metal detector when it was on actual and/or constructive notice of prior attacks in the B-Block yard; and (2) failed to supervise inmates and failed to segregate or otherwise isolate inmate Townsend from the general population based upon actual and/or constructive notice of his violent propensities and past history. This application is timely made within the parameters of CPLR article 2 and thus I examine the substance of the motion.

Section 10(6) enumerates the factors which the Court should consider in determining whether to exercise its discretion to grant the application, to wit, whether (1) the delay in filing the claim was excusable; (2) the State had notice of the essential facts constituting the claim; (3) the State had an opportunity to investigate the circumstances underlying the claim; (4) the claim has the appearance of meritoriousness; (5) the failure to file or serve a timely claim or notice of intention resulted in substantial prejudice to the State, and (6) there is any other available remedy.

Claimant first addresses his excuse for failing to timely serve a notice of intention to file a claim or serve and file a claim within 90 days of accrual of his cause(s) of action. He alleges ignorance of the law, an inability to consult with counsel, his incarceration, and what he contends is a recognized legal disability of a mental illness/disorder, as well as his housing in a Mental Health Unit at Wende “for a few days for observation due to his mental and emotional state, during the 90 day time period....” In support of his contention regarding his legal disability, he supplies as Exhibit D a Treatment Plan Review dated January 13, 2003. He supplies no other documentary evidence regarding his disability, or support for his alleged incapacity, and in any event, neither that Treatment Plan Review, some 3¾ years old, nor his purported housing in a mental health unit for a few days, meet the criteria of a legal disability as noted in Court of Claims Act §10(5). The legal disabilities of infancy and insanity (CPLR 208), are not met here (but see McNulty v Willard Correctional Facility, et al., UID #2001-005-535, Claim No. 103826, Motion No. M-63443, Oct. 23, 2001, Corbett, J.,[1] observing that while bipolar disorder has been held to possibly make a toll available pursuant to Court of Claims Act §10[5], Wheeler v State of New York [104 AD2d 496] addressed the release of psychiatric and clinical records to allow a review of a dismissal motion). I find Claimant’s proffered excuse(s), including ignorance of the law and a putative legal disability, do not provide a reasonable excuse. Of course an applicant need not satisfy all six factors to be successful (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979).

The next factors, timely notice of the essential facts of the claim and the opportunity to investigate, are considered together. Claimant asserts that a number of named correction officers were present or responded to the incident, that there were written reports and memoranda written about the incident, and the December 20, 2006 grievance Claimant filed, all provide notice of the facts of the incident and an opportunity to investigate. The Defendant acknowledges that it has documents relative to the incident, and thus these factors inure to Claimant’s benefit. The Defendant urges that it would be prejudiced should late filing be granted since witnesses’ memories may have faded. I find that this argument is not particularly compelling, but in any event does not approximate the substantial prejudice contemplated in Section 10(6). With respect to the availability of another remedy, Defendant suggests that Claimant has a valid cause of action against the other inmate, an option unlikely to be viable.

The most significant factor, as it should be, is the appearance of meritoriousness of the proposed claim. Generally, liability in a claim like the one proposed must be predicated upon one of the following grounds: (1) the victim was a known risk and the State failed to provide reasonable protection (see Sebastiano v State of New York, 112 AD2d 562); (2) the State had notice that the assailant was particularly prone to perpetrating such an assault and failed to take proper precautionary measures (see Littlejohn v State of New York, 218 AD2d 833; Wilson v State of New York, 36 AD2d 559); or (3) the State had ample notice and opportunity to intervene and failed to act (see Huertas v State of New York, 84 AD2d 650). Negligence cannot be presumed from the mere happening of an assault in a correctional facility (see Cruz v State of New York, 63 AD2d 862). The State has a duty to provide “inmates with reasonable protection against foreseeable risks of attack by other prisoners” (Sebastiano v State of New York, 112 AD2d 562, 564, supra, citing Wilson v State of New York, 36 AD2d 559, supra).

The test for liability has evolved from the strict requirement of specific knowledge to encompass not only what the State actually knew, but also what the State reasonably should have known -- for example, from its knowledge of risks to a class of inmates based on the institution’s expertise or prior experience, or from its own policies and practices designed to address such risks, but with cognizance that when persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate, and the mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State (Sanchez v State of New York, 99 NY2d 247).

A claimant need only establish that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid cause of action exists (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11). Claimant’s first theory of negligence in his proposed claim alleges that the Defendant failed to take reasonable action and precautions by not utilizing a metal detector when it was on actual and/or constructive notice of prior attacks in the B-Block yard. Claimant offers no support beyond his own lay opinion for his theory that there is a duty to utilize a metal detector or that such supposed deficiency was a proximate cause of the altercation with Inmate Townsend. To the extent that the proposed claim asserts a cause of action based upon a theory that the Defendant was negligent in failing to segregate or otherwise isolate Inmate Townsend from the general population based upon actual and/or constructive notice of his violent propensities and past history, Claimant fails to meet the Santana criteria. Claimant offers no support other than bare conjecture and his own unsubstantiated assertions that Inmate Townsend had any sort of record of violent propensities, either directed toward Claimant or generally based upon his disciplinary record in the Department of Correctional Services. Had Claimant timely served and filed his claim, he might have proceeded on such a theory. Claimant suggests that were he able to engage in discovery then he could proceed to provide support for his theory. But in seeking the Court’s discretion for permission to file a late claim, he must provide something more than mere conjecture and speculation (cf. Nyberg v State of New York, 154 Misc 2d 199).

In sum, Claimant has not met the threshold of demonstrating that his proposed claim has the appearance of merit, and it would be an exercise in futility to grant this application (Savino v State of New York, 199 AD2d 254; Prusack v State of New York, 117 AD2d 729). Accordingly, after reviewing the statutory factors of Court of Claims Act §10(6), and after due consideration, I decline to exercise my discretion on Claimant’s behalf. The motion for permission to file a late claim is denied.

October 11, 2007
Rochester, New York

Judge of the Court of Claims

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