4,5 Letter request for thirty (30) day extension from Steve Miller, Claimant,
and Court response granting extension until February 20, 2008
Steve Miller alleges in his proposed claim that defendant’s agents at
Downstate Correctional Facility (Downstate) negligently failed to maintain a
wall fan in the mess hall resulting in a dangerous condition causing him serious
injury. More specifically, Mr. Miller asserts that on February 27, 2005 at
approximately 6:00 p.m. he was standing in line at the mess hall when the wall
fan exploded, and a portion of the deteriorating casing “became embedded
into claimant’s right eye and also the electrical cord became loosened
from the fan, while still plugged into the electrical outlet, striking claimant
on the right leg and causing him to sustain serious injuries.” [proposed
. He alleges he was “left
. . . without the total use of . . . [his right] eye . . .” and suffered a
“permanent burn mark on his right leg.” [proposed claim, ¶7].
Mr. Miller also alleges that he did not receive prompt and appropriate medical
care. [proposed claim, ¶¶ 8-11].
In support of the present motion, Mr. Miller states that the delay is excusable
because he is not a lawyer and did not have access to professional legal
counsel. He states he was given erroneous advice by law library clerks at
Washington Correctional Facility and pursued matters in federal court. A further
excuse advanced is that he was illiterate at the time of the incident and
currently reads and writes only at a third grade reading level, and is enrolled
in an educational program at his current placement at Bare Hill Correctional
Facility. Mr. Miller argues that within the ninety (90) days of accrual of the
claim on February 27, 2005 he was suffering from a “learning
disability” because he could not “see to [sic] well” as
a result of the injuries sustained in this incident.
Additionally, Mr. Miller argues that the State had notice of the essential
facts of the claim and would not be prejudiced, noting that a correction officer
witnessed the incident, that State medical personnel treated him, and there had
been ample opportunity to investigate the claim by speaking with such witnesses.
Mr. Miller does not attach any documentation of the incident - such as his
ambulatory health record [AHR] for example - or other records, such as an
unusual incident report, or a report of inmate injury form, concerning this
incident occurring (at this writing) three years ago.
The assistant attorney general writes that on January 28, 2005 Mr. Miller was
received at Downstate and that he left Downstate on March 4, 2005, within five
days of the alleged incident of February 27, 2005, and appends a computer
printout showing this activity. [Affirmation in Opposition to Motion for
Permission to File a Late Claim, ¶3; Exhibit 2]. The State asserts that it
would be severely prejudiced by the passage of time. The State notes that Mr.
Miller was in the facility for only 35 days, did not name any eyewitness to the
incident, and that a “diligent search” of the records revealed that
no grievances were filed, nor were any accident or injury reports, or
maintenance records concerning the fan, rendering it “virtually impossible
for the defendant to investigate and defend this stale claim.”
[Ibid. ¶¶ 4 and 5]. No affidavit by a person with knowledge
attesting to such diligent search and lack of records is submitted with the
opposition to the motion.
Accordingly, both Mr. Miller and the defendant have hinted at substantiation
of their respective positions, but have presented inadequate submissions on the
motion. Mr. Miller has asserted that this very dramatic incident occurred
involving witnesses and medical treatment yet only furnishes his own sworn
statements. The defendant simply states that there is no record of it, without
providing an affidavit from a person who could attest to both a diligent search
and the lack of a record, such as an inmate records coordinator for the
NOW THEREFORE, since additional information would resolve the respective
positions of the parties, and in the interest of judicial economy, it is
ORDERED, that the return date of this motion is further adjourned, to May 7,
2008, and it is further
ORDERED, that Mr. Miller and the Defendant serve and file additional
affidavits and supporting documentation by May 7, 2008, when the motion will be
marked fully submitted, and thereafter decided based upon the available proof.