New York State Court of Claims

New York State Court of Claims
CUMMINGS v. THE STATE OF NEW YORK, # 2020-041-048, Claim No. 133212, Motion No. M-96117


Application to serve and file late claim alleging that defendant's negligence caused inmate/claimant to suffer injuries and damages resulting from attack by unidentified fellow inmate is granted where allegations of proposed claim, together with allegations of improperly served notice of intention to file a claim, provide minimal appearance of merit of proposed claim.

Case information

UID: 2020-041-048
Claimant short name: CUMMINGS
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 133212
Motion number(s): M-96117
Cross-motion number(s):
Claimant's attorney: DAVID HOROWITZ, P.C.
Christopher S. Joslin, Esq., Of Counsel
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
By: Shadi Masri, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: December 10, 2020
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant moves for permission to serve and file a late claim pursuant to Court of Claims Act 10 (6). Defendant opposes the claimant's application.

The defendant previously moved (M-95125) to dismiss claim 133212 as untimely pursuant to Court of Claims Act 10 (3-b) due to claimant's failure to serve his predicate notice of intention to file a claim on defendant in the manner required by Court of Claims Act 11 (a). Defendant's dismissal motion was granted via the Court's Decision and Order, filed November 6, 2020, after a Traverse Hearing.

The proposed claim, when read in conjunction with the improperly served notice of intention to file a claim, alleges that the inmate/claimant suffered injuries and damages due to defendant's negligence in failing to protect claimant from an attack by an unidentified fellow inmate in the "North Yard of the Clinton Correctional facility" on November 16, 2017.

In determining the application, Court of Claims Act 10 (6) provides that:

"[T]he court shall consider, among other factors, whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy."

In reviewing a late claim application, "the Court of Claims is required to consider, among other factors, those enumerated in Court of Claims Act 10 (6), no one factor being controlling" (Matter of Donaldson v State of New York, 167 AD2d 805, 806 [3d Dept 1990]; see Matter of Duffy v State of New York, 264 AD2d 911, 912 [3d Dept 1999]). In fact, "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's and Firemen's Retirement System, 55 NY2d 979, 981 [1982]).

Further, "it is well settled that the Court of Claims' broad discretion in this area should be disturbed only in the face of clear abuse" (Calco v State of New York, 165 AD2d 117, 119 [3d Dept 1991], lv denied 78 NY2d 852 [1991]).

Defendant does not contest claimant's allegations concerning the timeliness of the application with respect to CPLR Article 2 or the reasonableness of claimant's lateness excuse. Additionally, defendant does not deny timely notice of the essential facts of the claim nor does it deny that it had an opportunity to investigate the claim's circumstances. Defendant does not claim to have suffered substantial prejudice due to the claimant's delay in properly serving the claim.

Defendant disputes the merit of the claim and Savino v State of New York (199 AD2d 254, 255 [2d Dept 1993]), reminds that "it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion."

In particular, the defendant argues that the claimant "failed to allege any circumstances or otherwise proffer any evidentiary support" for the claimant's "conclusory allegations" of negligence.

Section 10 (6) requires that the proposed claim not be "patently groundless, frivolous or legally defective, and [that] upon consideration of the entire record, there is cause to believe that a valid cause of action exists" (Rizzo v State of New York, 2 Misc 3d 829, 833-834 [Ct Cl 2003]; see Dippolito v State of New York, 192 Misc 2d 395 [Ct Cl 2002]; Remley v State of New York, 174 Misc 2d 523 [Ct Cl 1997]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]).

In order to determine the merit of the proposed claim, "the Court may examine the proposed causes of action, as well as all submitted papers and exhibits" (Dippolito, 192 Misc 2d at 396-97).

The law applicable to consideration of an inmate-on-inmate assault is clear. "Having 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" (Sanchez v State of New York, 99 NY2d 247, 252 [2002]). "This duty, however, is limited to providing reasonable care to protect inmates from risks of harm that defendant knew or should have known were foreseeable" (Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). "The State . . . is not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident" (Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]).

In determining if the defendant provided reasonable care to protect an inmate from assault the court may consider whether the claimant had previous known encounters with his assailant or had listed his assailant on an "'enemies list' with the institution" (Elnandes v State of New York, 11 AD3d 828, 829 [3d Dept 2004]). The court may also consider whether the assailant was "a known dangerous prisoner" (Auger v State of New York, 263 AD2d 929, 930 [3d Dept 1999]; see Wilson v State of New York, 36 AD2d 559 [3d Dept 1971]). Further, the court may consider whether "claimant was a known assault risk" (Stanley v State of New York, 239 AD2d 700, 701 [3d Dept 1997]).

The defendant's potential liability for negligent supervision with respect to an inmate-on-inmate assault is not limited, however, to situations in which actual notice of a particular claimant's vulnerability or a particular assailant's violent propensities can be shown. The defendant is also charged with the duty of protecting an inmate from reasonably foreseeable risks of harm based upon "what the State reasonably should have known--for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks" (Sanchez, 99 NY2d at 254 [emphasis in original]).

Claimant alleges that he was injured due to defendant's negligence in "failing to screen sufficiently for weapons; in failing to prevent the attack; in failing to protect the plaintiff; in failing to warn the plaintiff; in failing to inspect the inmates and their cells; in failing to have sufficient personnel in the area; in failing to segregate the known trouble makers from the general population; in failing to provide protective custody; in failing to have a corrections officer surveying the yard; in the negligent, ownership, operation, supervision and control of the prison and the North Yard."

Defendant has not offered an affidavit, nor offered any other proof, disputing the factual allegations of the proposed claim and supporting papers and the allegations are deemed true for purposes of this application (Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]).

While the defendant correctly points out that the generic negligence allegations of the proposed claim provide little insight into the facts and circumstances underlying the incident, the Court finds that the proposed claim, when considered in conjunction with the more specific allegations of the improperly served notice of intention to file a claim, has at least the minimal appearance of merit.

Based upon a balancing of the factors set forth in section 10 (6), the claimant's application to serve and file a late claim is granted.

Claimant is directed to file and serve his claim in compliance with this Decision and Order and in compliance with 11 and 11-a of the Court of Claims Act within forty-five (45) days of the filing of this Decision and Order with the Clerk of the Court of Claims.

December 10, 2020

Albany, New York


Judge of the Court of Claims

Papers Considered:

1. Claimant's Amended Notice of Motion, filed November 10, 2020;

2. Affirmation of Christopher S. Joslin, dated November 4, 2020, and attached exhibits;

3. Affirmation in Opposition of Shadi Masri, dated November 23, 2020.