New York State Court of Claims

New York State Court of Claims

RODRIGUEZ v. THE STATE OF NEW YORK, #2007-015-189, Claim No. NONE, Motion No. M-72995


Motion for late claim relief was granted for claim arising out of 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:
Jonathan Rodriguez, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 15 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant, acting pro se, seeks late claim relief pursuant to Court of Claims Act § 10(6). The proposed claim alleges damages for injuries allegedly sustained when movant was assaulted by a fellow inmate on October 4, 2006 in the recreation yard at Great Meadow Correctional Facility. Movant alleges that the incident occurred as he was awaiting "early go back" and that he was repeatedly struck with a razor-type weapon in the face and hand by an unidentified inmate. Movant alleges that at the time of the assault there were no correction officers stationed in the nearby officer stations and, as a result, the incident was unwitnessed by correction officers who might otherwise have acted to prevent or halt the attack. He alleges that the State was negligent in creating an environment which promoted inmate-on-inmate attacks by failing to provide adequate security in the recreation yard, failing to perform effective body searches, failing to impose a sufficient penalty when State-issued razors go missing, and in failing to isolate inmates with known violent propensities.

Movant alleges that after the incident occurred he was treated in the infirmary where pictures were taken of his injuries. He was then taken to an outside hospital for treatment. Reports prepared by Department of Correctional Services (DOCS) personnel were submitted in support of the motion. The reports indicate that an investigation was immediately undertaken and which resulted in a recommendation for involuntary protective custody. An involuntary protective custody hearing was held and the hearing officer determined that protective custody was necessary for the movant's safety "[b]ecause you were cut by an unknown assailant who is therefore still at large". Movant states that he filed a grievance with the inmate grievance resolution committee in October of 2006. Having received no response to the grievance, he filed a second grievance on January 31, 2007. Movant submitted neither a copy of the original grievance nor proof that it was actually filed.

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. Claimant'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 [1994]). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Gavigan v State of New York, 176 AD2d 1117 [1991]). 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 [1993]).

Movant asserts as excuses for his failure to timely file his claim that he had been suffering "severe stress", that he had been suffering "mild sleeping difficulty", that he is not trained in the law and was unaware of the 90-day time limitation, that he was confined to protective custody following the incident and "could not attend the law library" and that he is only twenty-one years of age and neither he nor his family had money to pay for an attorney and the only help he could get was from another inmate. The Court finds the movant's conclusory assertions that he suffered from stress and had difficulty sleeping unacceptable excuses for the delay in filing the claim (see Cabral v State of New York, 149 AD2d 453 [1989]). Likewise, the assertion that the movant could not attend the law library while he was in protective custody is wholly unsupported and fails to establish that inmates confined to protective custody do not have access to legal materials. Lastly, neither claimant's age nor his ignorance of the law constitute a reasonable excuse for his failure to timely file his claim (Matter of Robinson v State of New York, 35 AD3d 948 [2006] [ignorance of the law is not a reasonable excuse for the failure to timely file a claim]). The lack of a reasonable excuse weighs against the movant in determining this motion.

The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Movant established that DOCS was made aware of the assault at the time it occurred and that an investigation of the incident followed shortly thereafter. In opposition to the motion, the defendant failed to establish how it will be prejudiced by the late filing of the claim. These factors weigh in movant's favor.

With respect to the required showing of merit, the claim is sufficiently established if the claimant 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 (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1,11 [1977]).

It is settled that the State has a duty to safeguard inmates even from attacks by fellow inmates (Sanchez v State of New York, 99 NY2d 247 [2002]; Di Donato v State of New York, 25 AD3d 944 [2006]). This duty does not require "unremitting surveillance in all circumstances," nor does it cast the State in the role of insurers of inmate safety (Sanchez v State of New York, supra at 256). Rather, the scope of the duty is limited to risks of harm that are reasonably foreseeable, which includes not only what the defendant knew but what it should have known (id. at 253, 255; see also, Smith v County of Albany, 12 AD3d 912 [2004]). In his proposed claim, the movant alleges that the security procedures employed at the prison are lax and promote an atmosphere in which assaults are likely to occur. In addition, the movant alleges that the assault took place at a time when corrections officers were absent from their observation stations. These facts sufficiently establish that the movant's negligence cause of action is not patently groundless or frivolous. This factor weighs in favor of the movant.

As to the final factor to be considered, it appears that no alternative remedy exists as the assailant was never identified.

Based on the foregoing, the Court finds that it would be a proper exercise of discretion to allow the claim to proceed. The application is granted and the movant is directed to file and serve a claim in the form proposed and to do so in conformity with the requirements of Court of Claims Act §§ 10 and 11 within 45 days of the date on which this decision and order is filed.

May 15 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated February 21, 2007;
  2. Affidavit of Jonathan Rodriguez sworn to February 21, 2007 with exhibits;
  3. Affirmation of Saul Aronson dated March 13, 2007.