Movant's application for leave to serve and file a late claim alleging negligent supervision in prison was denied as he failed to support his motion with a proposed claim and failed to establish the potential merit of the claim.
|Claimant short name:||KABA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Mory Kaba, Pro Se|
|Defendant's attorney:||Honorable Eric T. Schneiderman, Attorney General
By: Anthony Rotondi, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 16, 2018|
|See also (multicaptioned case)|
Movant seeks permission to file and serve a late claim pursuant to Court of Claims Act §10 (6).
Movant, a pro se inmate, was allegedly assaulted by another inmate at Great Meadow Correctional Facility on August 20, 2016. In support of his motion for leave to file and serve a late claim, movant alleges in an affidavit submitted in support of the motion that the State was negligent in failing to protect him from harm because a "correction officer wasn't on post watching the [i]nmates on 8/20/16, 3:35 p.m. on the B-7 landing" (Kaba affidavit, ¶ 7). A proposed claim was not submitted with the motion.
Court of Claims Act § 10 (6) requires that an application for permission to serve and file a late claim include "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act". Thus, movant's failure to support his application with a copy of his proposed claim requires denial of the motion (see Davis v State of New York, 28 AD2d 609 [3d Dept 1967]; Ormsby v State of New York, UID No. 2011-040-006 [Ct Cl, McCarthy, J., January 12, 2011]). Moreover, the affidavit submitted in support of the motion failed to establish the potential merit of the claim, the most important factor for determination on an application to file a late claim (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 ). As made clear by the Court of Appeals in Sanchez v State of New York (99 NY2d 247 ):
"[T]he State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate".
Alleging only that a correction officer was absent from his post is insufficient, standing alone, to establish the potential merit of the claim.
Accordingly, movant's application for permission to file and serve a late claim is denied.
January 16, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims