New York State Court of Claims

New York State Court of Claims

MILLER v. THE STATE OF NEW YORK, #2008-030-509, Claim No. None, Motion No. M-74153


Late claim motion adjourned for further submissions by claimant and defendant. Defendant to submit affidavit by person with knowledge who could attest to both a diligent search and the lack of record of the accident. Inmate claimant to submit ambulatory health records, or unusual incident report, or some other memorialization that the accident he describes involving an exploding fan and/or electrical wire in the crowded mess hall occurred.

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:
Third-party defendant’s attorney:

Signature date:
February 29, 2008
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on claimant’s motion for permission to

serve and file a late claim brought pursuant to Court of Claims Act §10(6):

  1. Motion for Permission to File a Late Claim by Steve Miller, Claimant, filed October 29, 2007, with attachments
  1. Letter dated November 19, 2007 from Jeane L. Strickland Smith, Assistant Attorney General to Claimant enclosing proposed claim
  1. Affirmation in Opposition to Motion for Permission to File a Late Claim by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits
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 claim, ¶5][1]. 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 facility.

NOW THEREFORE, since additional information would resolve the respective positions of the parties, and in the interest of judicial economy, it is hereby

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.

February 29, 2008
White Plains, New York

Judge of the Court of Claims

[1]. The Attorney General’s Office was apparently served with a copy of the proposed claim in April 2007, and thereafter served with the motion papers in or about November 2007. Although the motion was originally calendered for November 21, 2007, it was adjourned two times at defendant’s request, and one on Mr. Miller’s request.