New York State Court of Claims

New York State Court of Claims

CALDERON v. THE STATE OF NEW YORK, #2008-015-017, Claim No. NONE, Motion No. M-74300


Synopsis


Inmate's motion to file a late claim for injuries sustained in an inmate-on-inmate attack was denied where none of the factors for consideration upon such a motion favored the movant.

Case Information

UID:
2008-015-017
Claimant(s):
DAVID CALDERON
Claimant short name:
CALDERON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-74300
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
David Calderon, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 3, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant, an inmate proceeding 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 another inmate on June 1, 2007 in a recreation room at Washington Correctional Facility. Movant asserts in the proposed claim that the State was negligent in failing to “protect the claimant from the reasonably foreseeable assault and battery committed on him by, Dennis Floyd, another inmate. . .” (see proposed claim ¶ 2). Movant also asserts that the State failed to properly supervise the recreation room where the assault allegedly occurred.

In support of the motion movant submitted various reports and memoranda, generated as part of the investigation of the incident by prison officials, which indicate that a fight erupted between the movant and inmate Floyd in the recreation area where Correction Officer Glover observed Floyd slash movant on the side of his face with the top of a can measuring approximately 2 ½ inches in diameter. Movant was treated in the infirmary where he received 15 stitches. Sergeant Brewer stated the following in a memorandum regarding the event to Lieutenant Cummings dated June 1, 2007:
During my interview with inmate Calderon . . . he states that he was cut from behind and when he turned around he saw an inmate running out of the front door of housing unit A1. He stated that he could not identify the inmate who cut him. Inmate Calderon . . . claims to have no enemies or problems with anyone at this time. A refusal for protective custody form was completed . . . .”
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 that he failed to timely serve and file his claim because he was unaware of the limited period in which to file a claim and that this lack of knowledge was compounded by his incarceration and inability to access legal materials or consult with counsel. It is well settled, however, that ignorance of the law is not a acceptable explanation for the failure to timely file and serve a claim (Matter of Robinson v State of New York, 35 AD3d 948 [2006]; Matter of Sandlin v State of New York, 294 AD2d 723 [2002], lv dismissed 99 NY2d 589 [2003]). Likewise, conclusory allegations that one is incarcerated and without access to legal references is not a reasonable explanation for the failure to timely file and serve the claim (Matter of Sandlin v State of New York, 294 AD2d 723 at 724). 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. Although movant established that prison officials were immediately aware of the assault at the time it occurred and that an investigation of the incident followed shortly thereafter, he failed to establish that the State was aware “of the precise claim now being asserted, namely, that it permitted or is somehow responsible for such assaults” (Matter of Sandlin v State of New York, 294 AD2d 723 at 724 [emphasis in original]). The courts have consistently held in this regard that knowledge of an accident or injury, without more, does not constitute knowledge of “the essential facts constituting the claim” as required by subdivision 6 of section 10 of the Court of Claims Act (Court of Claims Act § 10 [6]; see generally Matter of Felice v Eastport/South Manor Central School Dist., ___AD3d ___, 2008 WL 257397 [2008]). Movant failed to establish that the State had notice of the essential facts constituting the claim, the concomitant opportunity to investigate and that no prejudice would result should the motion for late claim relief be granted.

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 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 an insurer of inmate safety (Sanchez v State of New York, supra at 256). Rather, the scope of the duty is limited to risks of harm which are reasonably foreseeable, including 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]).

Movant alleges in only the most conclusory form that the State was negligent in failing to prevent a foreseeable assault. However, such allegations of negligence unsupported by factual detail are insufficient to establish the potential merit of the claim (Olsen v State of New York, 45 AD3d 824 [2007]; Witko v State of New York, 212 AD2d 889 [1995]; Sevillia v State of New York, 91 AD2d 792 [1982]). Late claim applications involving inmate on inmate assaults have, therefore, been denied where the movant “did not specify how the State failed to provide inmates with reasonable protection against foreseeable risks of attack by other prisoners” (Edens v State of New York, 259 AD2d 729, 730 [1999]; see also Matter of Sandlin v State of New York, 294 AD2d at 724). Here, the movant's conclusory allegations are inadequate to establish the potential merit of the claim. This is particularly the case where movant's own proof (Brewer memorandum) appears to contradict the allegations in the proposed claim.

As to the final factor to be considered, it does not appear that a claim against the assailant is foreclosed.

As none of the factors for consideration upon a motion for late claim relief favor the movant, the Court declines to exercise its discretion to permit the filing of a late claim. Accordingly, movant’s application for such relief is denied.


March 3, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated November 30, 2007;
  2. Affidavit of David Calderon sworn to November 20, 2007 with exhibits;
  3. Affidavit of Dennis M. Acton sworn to December 19, 2007;
  4. Reply to defendant's opposition of David Calderon dated January 11, 2008.