New York State Court of Claims

New York State Court of Claims

MILLER v. THE STATE OF NEW YORK, #2008-030-529, Claim No. None, Motion No. M-74153


Late claim motion denied. Defendant submitted additional information as directed in earlier Interim Decision and Order; Claimant did not. No record that the accident claimant describes involving an exploding fan and/or electrical wire in the crowded mess hall occurred. No reasonable excuse, notice, or opportunity to investigate. Prejudice to State, because of lack of any meaningful contemporaneous record of any incident

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:
June 12, 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
  1. Affirmation in Opposition to Motion for Permission to File a Late Claim by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits
  1. Letter dated November 19, 2007 from Jeane L. Strickland Smith, Assistant Attorney General to claimant enclosing proposed claim
4,5 Letter request for thirty (30) day extension from Steve Miller, Claimant, and Court response granting extension until February 20, 2008

6-12 Letter dated May 20, 2008 from Jeane L. Strickland Smith, Assistant Attorney General to the Court, with the following affidavits enclosed: Helen Denno, dated May 6, 2008; Dane Clark, dated May 6, 2008; Skip Hughes, dated May 7, 2008; Carmela Napolitano, dated May 13, 2008; Steve Colony, dated May 14, 2008; David H. Dawes, IV, dated May 13, 2008

  1. Filed papers: Miller v State of New York, UID # 2008-030-509, Claim No. None, Motion No. M-74153, Interim Decision and Order (Scuccimarra, J., February 29, 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 leg.” [Proposed claim, ¶7]. Mr. Miller also alleges that he did not receive prompt and appropriate medical care. [Proposed claim, ¶¶ 8-11].

Five days after this incident, claimant was transferred from Downstate to Washington Correctional Facility [Washington], having been at Downstate - a reception facility for the New York State Department of Correctional Services [DOCS] - for a total of 35 days. [See Affirmation in Opposition by Jeane L. Strickland Smith, ¶4; Exhibit 2].

In its Interim Decision and Order, incorporated herein by reference, the Court adjourned claimant’s motion for further submissions to substantiate the arguments advanced by both parties, in order to more adequately assess whether claimant should be afforded late claim relief.

At this writing, Mr. Miller has not provided any further submissions documenting the alleged incident - such as copies of an unusual incident report, or a report of inmate injury, or his own ambulatory health record [AHR] - while the State has submitted various affidavits by persons with knowledge, referring to attached records in support of its own arguments against granting late claim relief.

In order to determine an application for permission to serve and file a late claim, the Court must consider, “among other factors,” the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available.[2] The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees’ Retirement System Policemen’s & Firemen’s Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

A copy of the proposed claim[3], must accompany the motion, allowing the Court to ascertain the particulars of the claim, including the date of accrual, location of the alleged incident, and what injuries are alleged. See Court of Claims Act §11-b.

Additionally, the motion must be timely brought in order to allow that a late claim be filed “. . . at any time 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 . . .” Court of Claims Act §10(6) . Here, the applicable statute of limitations is two (2) years and six (6) months with regard to any claim of medical malpractice, and three (3) years with regard to negligence. See §§214, 214-a Civil Practice Law and Rules. Thus the motion was timely when made with regard to only the negligence cause of action - not any cause of action asserting medical malpractice - assuming a date of accrual of February 27, 2005.

The defendant argues that no appropriate excuse is advanced beyond claimant’s own misunderstanding of his available remedies, and that the defendant would be severely prejudiced by the passage of time coupled with the transient nature of Mr. Miller’s stay at Downstate and his failure to provide the names of any witnesses to an alleged wall fan explosion in a very public place. Defendant also argues that there are no reports of inmate injury extant, no grievances were filed (in order to further document the alleged event), and that no maintenance records concerning the fan could be found and that, accordingly, not only would the State be unable to investigate the claim, the claim lacks the appearance of merit.

Helen Denno, the Inmate Records Coordinator at Washington notes that no grievances were filed by Mr. Miller at the facility. [Affidavit by Helen Denno, ¶5]. Dane Clark, the supervisor of the Inmate Grievance Program at Washington also indicates that claimant did not file a grievance at the facility. [Affidavit by Dane Clark, ¶4]. What makes these avowals by Ms. Denno and Mr. Clark significant is that in a memorandum to Mr. Miller by Skip Hughes, the Supervisor of the Inmate Grievance Program at Downstate, dated April 6, 2005, Mr. Miller was advised in response to his own inquiry dated March 30, 2005, that even a grievance concerning an occurrence happening at a different facility had to be filed at the facility where the grievant is housed, and claimant did not apparently pursue the matter as suggested. [Affidavit by Skip Hughes, ¶5, attached memoranda].

Mr. Hughes also told Mr. Miller in April 2005 that his research showed that claimant had arrived at Downstate on January 28, 2005, was transferred to an outside hospital on January 29, 2005, returning to Downstate on February 1, 2005, where claimant remained in the reception population until he was transferred to Washington on March 4, 2005. [Ibid.]. Interestingly, in the memorandum claimant wrote to Mr. Hughes in the first instance on March 30, 2005, he describes the incident as occurring “on or about January, 2005” and states
“. . . while I was in the process of waiting in line for lunch, a fan in the line I was in that was located above my head blew-up causing me loss of vision and the wire to the fan caused a severe shock to my right leg, in which, caused a bad burn to my right leg. Officer Needy who was in charge of the housing that I lock at for that day sent me to the medical clinic upon our arrival back to the housing unit. While at the medical clinic a Sergeant investigated the incident and asked me question and I was then sent to the Westchester County Hospital to be seen, and then I was sent to another clinic that specialized in my problem.”[Ibid.].

Steve Colony, the Maintenance Supervisor at Downstate since 1998, responsible for maintenance of the physical plant, indicates that he undertook a search of the maintenance records regarding a fan in the Complex 3 Mess Hall, and found no work order requests or any indication that anything other than “routine preventative maintenance” might have involved such a fan. [Affidavit by Steve Colony, ¶¶3-5, attached memorandum]. David H. Dawes, IV, the Acting Fire and Safety Officer at Downstate, responsible for “maintaining equipment, safety and fire records, employee and inmate accident reports, [and] investigations . . .”, also performed a search of his records for any Inmate Injury Reports regarding Mr. Miller at Downstate. [Affidavit by David H. Dawes IV, ¶1-3]. He found that no Inmate Injury Report had been filed for this incident nor had any reports been filed with regard to this claimant. [Ibid. ¶¶ 3 and 4, attached records entitled “2005 Inmate Injuries”]. This is confirmed by the court’s review of the attached records as well. [Ibid.].

The only record of any incident regarding Mr. Miller at Downstate is found in a portion of the emergency room log book, and in a portion of his housing unit log book, copies of which are appended to the affidavit of Carmela Napolitano, a Correction Counselor Aide and Records Access Officer at Downstate since August 2001. [Affidavit by Carmela Napolitano, attached papers]. On January 31, 2007 claimant made a FOIL request regarding any incident reports in the months of January or February 2005, in the mess hall, involving a fan exploding and his own injuries. [Ibid.]. When Ms. Napolitano responded to Mr. Miller’s request, she advised that no such reports existed, and further advised that the emergency room log book entry did contain a reference to his visit there on February 27, 2005. A photocopy of same was given to him after payment of the copying cost. [Ibid.]. It is unclear whether a copy of the housing unit log book entry was furnished to claimant as well. Both sets of entries suggest that the claimant complained of something happening on February 27, 2005, and that some minimal treatment was afforded at that time. There is no correlation, however, between an incident on February 27, 2005, and any trip to an outside hospital mentioned as occurring on January 29, 2005, [see Affidavit of Skip Hughes, attached memorandum to claimant] or, indeed, any correlation between the dramatic events described in the proposed claim and the actual documentation of such an event.

The housing unit log book entry refers to Mr. Miller at 4:35 p.m on February 27, 2005, and again at 6:20 p.m. that evening. [Affidavit of Carmela Napolitano, attached papers]. At 4:35 p.m. it is noted in part that
“Inmate Miller . . . complained his eyes were burning from smoke which came from a socket in the mess hall, short circuit causing a popping sound and releasing smoke . . . [Correction officer] called nurse . . . of situation said inmate is to flush his eyes 3 times if problem does not improve call back.” [Ibid.].

The entry at 6:20 p.m. states that Mr. Miller was “. . . complaining of pressure in chest, nurse notified, inmate escorted by . . . [correction officer] to DSH . . . [return at] 8:20 p.m..” [Ibid]. The facility emergency room entry at 6:30 p.m. states:
“Miller, S . . . s/p electric short in plug in mess hall, made a noise that shocked him. Piece of debris burned small hole in his pants of . . . [right] leg. Small reddened area on leg. Eyes red. Rinse . . . [with water] before appeared SSO to . . . [right] leg . . . s/e in a.m. to . . . [follow up].” [Ibid.].
A claim appears to be “meritorious” within the meaning of the statute if it is not patently groundless, frivolous or legally defective and a consideration of the entire record indicates that 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 (Ct Cl 1977). With regard to the cause of action that claimant asserts herein, although the State has a duty to protect inmates from foreseeable risks of harm, it is not the insurer of inmate safety. Its duty is to exercise “reasonable care under the circumstances . . .” [Basso v Miller, 40 NY2d 233, 241 (1976)], to protect against foreseeable risks of harm. Assuming that the State did not create a dangerous condition, a claimant must show that the State had actual or constructive notice of the condition and failed to act reasonably to remedy it. Gordon v American Museum of Natural History, 67 NY2d 836, 837 (1986). Creation of a dangerous condition constitutes actual notice. Lewis v Metropolitan Transportation Auth., 99 AD2d 246, 249 (1st Dept 1984), affd, 64 NY2d 670 (1984). With respect to constructive notice, any “. . . defect must be visible or apparent and it must exist for a sufficient length of time prior to the accident to permit . . . [a defendant] to discover and remedy it . . . (citation omitted).” Gordon v American Museum of Natural History, supra at 837. It is only those foreseeable dangerous conditions which are not remedied within a reasonable time which may establish liability on the State’s part, [ Gordon v American Museum of Natural History, supra], assuming that proximate cause and actual damages are proven as well.

Here, while Mr. Miller initially argued 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, when given the opportunity to substantiate these matters he has not done so. Instead, the defendant has provided information that confirms that while something may have happened on February 27, 2005, no information as to what happened is available to show that the State could adequately investigate the claim at this late juncture given the lack of any meaningful contemporaneous record, nor is there any information from which Mr. Miller could establish the elements of the cause of action he is asserting.

Thus the closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh strongly against granting claimant’s motion. Based upon the additional submissions made at the court’s direction, it is clear that the State’s ability to investigate is impeded to its prejudice. Quilliam v State of New York, 282 AD2d 590 (2d Dept 2001) (8 month delay); Edens v State of New York, 259 AD2d 729 (2d Dept 1999) (Two years and two and one-half months from date of accrual); Gallagher v State of New York, 236 AD2d 400 (2d Dept 1997) (State did not receive actual notice of claim until 9 months after accident).

Although Mr. Miller’s assertions that he lacked knowledge of the law, pursued incorrect remedies and was unable to consult with counsel do not constitute acceptable excuses, thus this factor weighs against him. Innis v State of New York, 92 AD2d 606 (2d Dept 1983), affd 60 NY2d 654 (1983); Musto v State of New York, 156 AD2d 962 (4th Dept 1990).

Most significantly, claimant has not made the requisite showing of merit in order to permit late filing of his claim. There has been no showing that the State was aware of any defective condition in any electrical wire or any fan and failed to cure it within a reasonable time.

As noted above, late claim relief with regard to any claim of medical malpractice is unavailable. With regard to any negligence cause of action, too, and after considering all the required factors, the claimant has failed to establish entitlement to the relief requested. Accordingly, claimant’s motion number M-74153 for permission to serve and file a late claim is, in all respects, denied.

June 12, 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 calendared for November 21, 2007, it was adjourned two times at defendant’s request, and once at Mr. Miller’s request. As noted, the Court adjourned the motion to May 7, 2008 for further submissions, and the motion was further adjourned at the defendant’s request to May 21, 2008, when it was marked fully submitted.
[2]. The Defendant has not opposed the motion on the ground of availability of another remedy, therefore this factor is presumed to weigh in claimant’s favor.
[3]. Court of Claims Act § 10(6) states in pertinent part: “. . .The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . .”