New York State Court of Claims

New York State Court of Claims

CHICLANA v. THE STATE OF NEW YORK, #2007-029-005, Claim No. None, Motion No. M-72751


Inmate stabbed in eye by another inmate. State’s opposition to late filing motion was based on speculation and was without probative value. All relevant factors, except lack of reasonable excuse, weigh in favor of granting motion.

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:
BARTON BARTON & PLOTKIN LLPBy: Michael J. Hurwitz, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERALBy: Vincent M. Cascio, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 24, 2007
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant’s motion for permission to file a late claim arising out of a January 20, 2005 incident in which she was allegedly stabbed in the eye by Coreena Ward, also an inmate at Bedford Hills Correctional Facility. Claimant’s counsel advises that upon claimant’s release from State custody in October 2006, she sought legal advice from his firm and the instant motion ensued. Defendant opposes the motion. [1]

In her proposed claim, claimant alleges that defendant’s employees were negligent in failing to prevent the assault because they ignored both Ward’s violent tendencies and claimant’s prior complaints about Ward threatening her. Since claimant failed to timely serve and file a claim or serve a notice of intention within 90 days of accrual (Court of Claims Act § 10[3]), the sole remedy available to her at this point is relief pursuant to § 10(6), which grants the court the discretion to allow the filing of a late claim upon consideration of all relevant factors, including whether claimant’s delay was excusable, whether defendant had timely notice of and the opportunity to investigate the factual allegations constituting the claim, whether defendant would suffer substantial prejudice should the motion be granted, whether claimant has an alternate remedy and whether the proposed claim has the appearance of merit.

Although claimant’s delay in properly proceeding, occasioned by her unfamiliarity with the law, cannot be deemed excusable within the meaning of the statute, such is but one factor to consider (Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen’s and Firemen’s Retirement Sys., 55 NY2d 979). The court finds that the remaining relevant factors weigh in favor of granting the application.

With respect to the notice, opportunity to investigate and lack of prejudice factors, claimant alleges that a named correction officer immediately responded to the subject incident, escorted claimant to the medical clinic, took photographs and a videotape of her injuries and completed an incident report. In response, defendant notes the passage of almost two years between the incident and the making of this motion and alleges that the State will be unable to properly defend itself because “a complete investigation . . . may be impossible” (Affirmation in Opposition, ¶ 23). Nevertheless, defendant offers nothing of substance in support of this contention, only speculation. For example, defendant alleges that claimant’s assailant may not still be incarcerated and that the State employees who responded to the scene may not still be employed by the State. These are matters within the State’s sole knowledge. If Ward is no longer incarcerated, and the officers with knowledge of the event no longer employed, such facts could be relevant to the question of substantial prejudice. However, defendant’s unsupported hypothetical speculation as to what their status “might” be, when defendant has actual knowledge of the situation, is not probative.

Moreover, defendant ignores claimant’s specific allegations that the incident was fully investigated at the time, maintaining that “[o]ther than movant’s statements, there is no indication that a thorough investigation of his [sic] accident ever occurred” (Affirmation in Opposition, ¶ 26). The problem with defendant’s argument is that claimant’s allegations – that correction officers responded immediately, that photographs and a videotape were taken, that the incident and her resulting medical treatment were fully documented in defendant’s records – are sufficient, particularly since defendant, which has actual knowledge of precisely what was done to investigate this incident, did not dispute these allegations. Generally, unrefuted factual allegations in support of a motion for permission to late file are accepted as true for the purpose of the motion. On this record, claimant’s contentions on the notice, opportunity to investigate and lack of substantial prejudice factors, contentions that were supported by specific factual allegations, stand unrefuted. Under these circumstances, these factors are “presumed to weigh in Claimant’s favor (see Calzada v State of New York, 121 AD2d 988; Cole v State of New York, 64 AD2d 1023, 1024)” (Fine v State of New York, 10 Misc 3d 1075[A]). Specifically, the court finds that defendant was aware of the alleged incident from the moment it occurred, that it conducted a full and complete investigation at that time and that there is no indication of substantial prejudice to defendant’s ability to defend the case arising from the passage of time.

As to the apparent merit of the proposed claim, claimant specifically alleges that defendant’s employees were on notice of Ward’s violent propensities and that she and other people had warned facility officials that Ward had made threats. Claimant’s burden on this motion is to establish that the claim is not patently groundless, frivolous, or legally defective and that there is reasonable cause to believe that a valid claim exists (Dippolito v State of New York, 192 Misc 2d 395; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1). Again, defendant offers nothing to refute the contention that it did not act reasonably in response to what it knew, or should have known, of the danger Ward posed to claimant, a contention that, if proven at trial, could result in State liability (see Sanchez v State of New York, 99 NY2d 247). Thus, the court finds a sufficient appearance of merit at this point so that the claim should be allowed to proceed to disclosure and possible trial (Jomarron v State of New York, 23 AD3d 527; Marcus v State of New York, 172 AD2d 724).

Accordingly, the court finds that this motion should be granted. Claimant is directed to serve and file her claim, in accordance with the applicable provisions of the Court of Claims Act and the Uniform Rules for the Court of Claims, with particular reference to manner of service and payment of the filing fee, within 30 days of the filing date hereof.

January 24, 2007
White Plains, New York

Judge of the Court of Claims

[1].The court considered the Notice of Motion, Affirmation and Exhibits and defendant’s Affirmation and Exhibits.