|Claimant short name:||ALI|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect that the properly named defendant is the State of New York rather than "Office of Mental Health."|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Michael Mantell, Esq.|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
By: John Hunter, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||August 10, 2009|
|See also (multicaptioned case)|
In motion no. M-76460, Mohammed Ali moves for permission to file a late claim pursuant to §10.6 of the Court of Claims Act (the "Act"). In his proposed claim, Mr. Ali alleges that on May 9, 2008, while he was incarcerated at the Kirby Forensic Psychiatric Center in New York City, he was "publicly threatened" by another inmate named Jason Hicks, who "immediately thereafter . . . criminally assaulted [him], causing . . . serious injuries," including an orbital fracture. See ¶¶2 through 4 of exhibit A to claimant's moving papers.(2)
The motion was made because it is undisputed that claim no. 115644 was untimely served on August 8, 2008, i.e., 91 days after accrual. This was raised in defendant's eighth affirmative defense in its answer to the claim, and in cross-motion no. CM-76730, defendant moves to dismiss on this basis. Section 10.3 of the Act requires that a claim such as this be served and filed within 90 days of accrual. Inasmuch as Ali's claim was not served until the 91st day, it is jurisdictionally defective. See, e.g., Byrne v State of New York, 104 AD2d 782 (2d Dept 1984), lv denied 64 NY2d 607 (1985); Mallory v State of New York, 196 AD2d 925 (3d Dept 1993).
Ali's late claim motion must thus be considered. In order to determine such motion, six factors enumerated in the Act must be considered, i.e., whether: (1) defendant had notice of the essential facts constituting the claim; (2) defendant had an opportunity to investigate the circumstances underlying the claim; (3) defendant was substantially prejudiced; (4) claimant has any other available remedy; (5) the delay was excusable; and (6) the claim appears to be meritorious. The factors are not necessarily exhaustive, nor is the presence or absence of any particular factor controlling.(3)
The first three factors - whether defendant had notice of the essential facts, had an opportunity to investigate or would be prejudiced by the granting of this motion are intertwined and may be considered together. See Brewer v State of New York, 176 Misc 2d 337, 342 (Ct Cl 1998). Defendant does not dispute that several days after the incident, claimant was taken by State employees to Mount Sinai Hospital for treatment. See the Mount Sinai Hospital form annexed to the proposed claim. Moreover, defendant does not dispute that these three factors have been met, and I find that they have been satisfied.
As to an alternate remedy, claimant presumably has a cause of action against the other inmate. With regard to excuse, counsel states that he mistakenly calculated the 90-day deadline. Such is not a viable excuse for the purposes of the Act. See, e.g., Matter of E.K. v State of New York, 235 AD2d 540 (2d Dept 1997), lv denied, 89 NY2d 815 (1997).
As to whether the claim appears meritorious, there is uncontested evidence that claimant was injured. See the aforementioned paperwork from Mount Sinai Hospital, as well as exhibit E to claimant's moving papers, which is a record from Saint Vincent Catholic Medical Center relating to follow-up treatment on February 12, 2009.
In Sanchez v State of New York, 99 NY2d 247, 252-53 (2002) (citations omitted), the Court of Appeals stated that, "[h]aving assumed physical custody of inmates, who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard inmates, even from attacks by fellow inmates . . . Like other duties in tort, the scope of the State's duty to protect inmates is limited to risks of harm that are reasonably foreseeable . . ." As to whether the attack on Ali was reasonably foreseeable, claimant states as follows in his February 18, 2009 affidavit (exhibit D to his motion papers):
4. Mr. Hicks and I had . . . quarreled outside in the yard on the day of the assault, May 9, 2008, in public view. Thereafter Mr. Hicks approached me and threatened me in the presence of the guards.
5. We were actually separated by the guards in the yard for [a] duration of time.
6. As we rode up in the elevator Mr. Hicks continued to verbally assault me and actually threatened to hit me as soon as he had the chance.
7. I told the staff that I wanted to be relocated to a different ward immediately.
8. The staff did not take these threats seriously. While we were lining up for snacks, Mr. Hicks was standing near the entrance to the day room.
9. When I entered the day room Mr. Hicks crept up behind me with his hand behind his back, [and] when he got closer he viciously hit me in the face with a hard object . . .
In view of the foregoing, claimant meets the standard for merit set forth in Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1, 11 (Ct Cl 1977), i.e., that: (i) the claim "must not be patently groundless, frivolous, or legally defective" and (ii) upon consideration of the entire record, including the proposed claim and any exhibits or affidavits, "there is reasonable cause to believe that a valid cause of action exists."
Accordingly, having considered the six factors in view of the parties' submissions(4) , IT IS ORDERED that motion no. M-76460 be granted and that within sixty (60) days of the filing of this Decision and Order, claimant shall serve and file his claim in compliance with §§11 and 11-a of the Court of Claims Act. IT IS FURTHER ORDERED that cross-motion no. CM-76730 be granted and that claim no. 115644 be dismissed.
August 10, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
2. For the purposes of this motion, claimant's exhibit A, which is a copy of claimant's previously filed claim designated as claim no. 115644, will be considered his proposed claim.
3. See Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's and Firemen's Retirement Sys., 55 NY2d 979 (1982); Scarver v State of New York, 233 AD2d 858 (4th Dept 1996).
4. The following were reviewed: claimant's notice of motion with affirmation in support, exhibits A through E and memorandum of law in support; defendant's notice of cross-motion with "Affirmation in Support of Cross-Motion and in Opposition to Claimant's Motion" with exhibit A; and claimant's "Affirmation in Reply and in Opposition."