Late claim motion alleging negligent failure to protect from inmate-on-inmate assault granted. Motion not untimely made, since brought within three (3) years of incident.
|Claimant short name:||BOYKIN|
|Footnote (claimant name) :||The caption has been amended to correct the spelling of claimant's first name.|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||ANDREW F. PLASSE, ESQ.|
|Defendant's attorney:||ANDREW M. CUOMO, ATTORNEY GENERAL OF THE STATE OF NEW YORK BY J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL|
|Third-party defendant's attorney:|
|Signature date:||August 3, 2010|
|See also (multicaptioned case)|
The following papers were read and considered on claimant's motion for permission to serve and file a late claim:
1,2 Notice of Motion for Late Claim; Affirmation by Andrew F. Plasse, Attorney for Claimant and attached exhibits
3 Affirmation by J. Gardner Ryan, Assistant Attorney General
4,5 Supplemental Affirmation in Support of Motion by Andrew F. Plasse, Attorney for Claimant, and attached Affidavit by Stephan Boykin, Claimant
6 Filed papers: Claim Number 114705; Answer
Stephan Boykin alleges in his proposed claim that on April 25, 2007, at approximately 8:45 a.m., defendant's agent or agents at Green Haven Correctional Facility [Green Haven] negligently or intentionally opened his cell door allowing unidentified fellow inmates clothed in "hoodies" to stab claimant in the neck while he slept. More specifically, he alleges that personnel knew or should have known that claimant was a potential target for assault, because he had been targeted as a participant in an earlier violent melee in the yard on or about April 21, 2007, and should have exercised more care in supervising the movement of inmates being released for sick-call and other programs on the day of the assault. He indicates that one correction officer, Correction Officer Macko, specifically told Mr. Boykin that claimant was known to have "had something to do with the stabbing of Inmate Hayes in E yard . . . [and] there was a hit on him . . . that what comes around goes around and to be ready for his call out . . . " [Affirmation by Andrew F. Plasse, Exhibit A, Proposed Claim, ¶21].
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 Court of Claims Act §10(6). A copy of the proposed claim(2) , must accompany the motion, allowing the court to ascertain the nature 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); 22 NYCRR §206.6. 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, premised on a date of accrual of April 25, 2007, and a negligence cause of action, the motion would be timely because it was made(3) within three (3) years of the alleged negligent conduct. Civil Practice Law and Rules §214(5).
If viewed only as a claim asserting an intentional tort, however, the primary (only) argument made by defendant, the statute of limitations for a like citizen would be one (1) year from accrual, rendering the present motion untimely. Civil Practice Law and Rules §215(3). While 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)], failing to make the motion in a timely fashion can have disastrous consequences. See Roberts v City Univ. of N.Y., 41 AD3d 825 (2d Dept 2007).
As an initial matter then, and however inartfully phrased by counsel, the proposed claim can be read at this preliminary phase of the proceedings to assert a negligence cause of action, premised upon the asserted failures by correctional personnel to protect claimant from a foreseeable risk of harm. Indeed, the language in the proposed claim attesting to the direct knowledge Correction Officer Macko allegedly purported to have of claimant being a target is clearly included to show that agents of the State of New York had such knowledge. Accordingly, under the unusual circumstances here whereby the underlying claim can be read in more than one way, the motion for late claim relief is timely for these purposes, as it is brought within three (3) years of its accrual.
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). Claimant need not establish a prima facie case at this point, but rather the appearance of merit.
Claimant does not provide an excuse for failing to timely serve and file his claim. An excuse, however, is but one of the factors to be considered, and its presence or absence does not conclude whether late claim relief is afforded. Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, supra. Although only peripherally addressed by claimant, and not at all addressed by defendant, the closely related factors of notice, opportunity to investigate and prejudice to the State, considered together, weigh toward granting claimant's motion. Notably, it appears that while claimant was still appearing pro se he served and filed a claim on or about January 14, 2008 alleging the State's failure to protect him from an assault on April 25, 2007, to which issue was joined by service of an answer on or about February 13, 2008. [See Claim Number 114705]. In the claim, Mr. Boykin alleged that a notice of intention to file a claim had been served upon the defendant on June 11, 2007. Thereafter, in a letter to the Clerk of the Court dated February 18, 2008, Mr. Boykin asked that his claim be withdrawn. The claim was marked withdrawn and the file closed on May 9, 2008.
Significantly, the foregoing demonstrates adequate notice, opportunity to investigate and lack of prejudice to the State. Indeed, in opposition to this motion defendant has submitted only an attorney's affirmation with no personal knowledge of the facts, and has failed to establish that any effort was made to determine whether it had notice of the incident or an opportunity to investigate. Matter of Smith v State of New York, 63 AD3d 1524, 1525 (4th Dept 2009). It is also noted that in addition to having been served with a claim (and possibly a notice of intention) and having answered it, there were internal investigations concerning the incident as well, and at least one grievance was filed. [See Affirmation by Andrew F. Plasse, Exhibits B, C, D, F]. As to alternative remedies, claimant might have a lawsuit against individual officers (and apparently brought some kind of proceeding in federal court). [See Affirmation by Andrew F. Plasse, Exhibit E].
As noted, claimant need not establish a prima facie case but the appearance of merit in an application for late claim relief. In this regard, while the State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates, [Blake v State of New York, 259 AD2d 878 (3d Dept 1999); Sebastiano v State of New York, 112 AD2d 562 (3d Dept 1985)], the State is not the insurer of the safety of inmates, and the fact that an assault occurs does not give rise to the inference of negligence. Sebastiano v State of New York, supra. In order to establish liability on the State's part, an inmate claimant must allege and prove that the State knew or should have known that there was a risk of harm to the claimant that was reasonably foreseeable and inadequately addressed. Sanchez v State of New York, 99 NY2d 247, 253 (2002), see also Flaherty v State of New York, 296 NY 342, 347 (1947). The Court must look to see if the actions taken by the State were reasonable under the circumstances. The mere fact that a correction officer is not present at the precise time and place of an assault, for example, does not give rise to an inference of negligence absent a showing that officials had notice - actual or constructive - of a foreseeable dangerous situation. Colon v State of New York, 209 AD2d 842 (3d Dept 1994); Padgett v State of New York, 163 AD2d 914 (4th Dept 1990), lv denied 76 NY2d 711 (1990); Huertas v State of New York, 84 AD2d 650 (3d Dept 1981).(4) ". . . [U]nremitting supervision . . ." is not required. Colon v State of New York, supra at 844.
Mr. Boykin has alleged that while aware that he had been made a target, correction officers did not take appropriate precautions or even follow their own regulatory procedures with regard to the movement of inmates and that he was foreseeably injured as a result of such failures. Even if, as here, the excuse offered for making a late claim motion is "not compelling", when the delay is minimal, when no prejudice would be suffered by the State, and when there are issues of fact as to the merits of the claim, late claim relief should be granted. Jomarron v State of New York, 23 AD3d 527, 528 ( 2d Dept 2005). After careful consideration of claimant's submissions, and if the allegations in his affidavit and proposed claim are accepted as true for the purposes of the motion, the Court finds that claimant has made the requisite showing of merit in order to permit late filing of his claim.
Accordingly, and after considering and balancing all the factors contained in Court of Claims Act §10(6), claimant's motion for permission to serve and file a late claim is hereby granted, and claimant is directed to serve his claim upon the Attorney General, and to file it with the Chief Clerk of the Court of Claims with proof of service, within forty (40) days from the date of filing of this decision and order in the Clerk's office, with such service and filing to be in accordance with the Court of Claims Act and the Uniform Rules for the Court of Claims.
August 3, 2010
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
2. 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 . . ."
3. A motion is "made when a notice of motion . . . is served." Civil Practice Law and Rules §2211;see Rivera v Glen Oaks Village Owners, Inc., 29 AD3d 560, 561 (2d Dept 2006) lv denied 9 NY3d 817 (2008); see also Jenkins v State of New York, 119 Misc 2d 144, 145 (Ct Cl 1983).
4. Another example might be whether there was information which would trigger any heightened awareness of a risk to this inmate - any "suspicious" behavior such as an individual leaving an assigned work post, or stuffing magazines in his shirt to avoid injury - to alert correction personnel of a specific danger brewing.