Movant's application to serve and file a Claim late granted.
|Claimant short name:||FRANCISCO|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||DAVID J. HERNANDEZ & ASSOCIATES
By: David A. Bonilla, Esq.
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Sean B. Virkler, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||February 9, 2018|
|See also (multicaptioned case)|
For the reasons set forth below, the application of Movant, Frank Francisco, to serve and file a late claim pursuant to Court of Claims Act § 10(6), is granted.
Movant's counsel's office filed a Claim with the office of the Clerk of the Court on September 2, 2016(1) and personally served the Claim upon Defendant on September 16, 2016, which Movant concedes is late pursuant to Court of Claims Act § 10(3)(2) (Affirmation of David A. Bonilla, Esq., [hereinafter, "Bonilla Affirmation"], ¶¶ 4, 10 and Ex. 3 attached thereto).
Movant attaches to the Motion papers as Exhibit 2, a copy of Claim No. 128468, which the Court will consider to be the proposed Claim. The proposed Claim alleges that, in or about June 2010, Movant, while incarcerated at Mid-State Correctional Facility (hereinafter, "Mid-State"), was placed in protective custody due to his status as a confidential informant and the fact that other inmates at Mid-State were aware of his status as such; it further alleges that, in January 2012, Movant was transferred to Woodbourne Correctional Facility and later released in January 2012. In July 2014, Movant was again sent to Mid-State, where he was placed with the general population, despite the fact that the New York State Department of Corrections and Community Supervision (hereinafter, "DOCCS") was aware of Movant's status as a confidential informant, since the same officers, agents, staff, and /or employees had placed Movant under protective custody a few years prior. It is further alleged that DOCCS was negligent in placing Movant with the general population despite knowing his status as an informant and that other inmates were aware of that status. On September 6, 2014 at approximately 1:00 p.m. at Mid-State, Movant was in the process of being transported from the Yard to Housing Unit 2, when he was attacked by another inmate with a sharp surgical blade. Immediately after the assault, Movant notified a named Correction Officer of the assault, and that Movant felt a burning sensation on his face, at which point, the officer observed a laceration on Movant's face. Movant was transported to the medical unit and, subsequently, taken to St. Luke's Hospital, where he received 23 stitches to the right side of his face and 8 stitches to his right ear (Bonilla Affirmation, Ex. 2 [Proposed Claim, ¶ 3]).
The portion of the Motion that seeks to deem the current Claim (Claim No. 128468) to be timely filed and served nunc pro tunc is denied, as nunc pro tunc relief is not available in the Court of Claims (Byrne v State of New York, 104 AD2d 782, 783 [2d Dept 1984], lv denied 64 NY2d 607 ; Smith v State of New York, 53 AD2d 756, 758 [3d Dept 1976], affd 41 NY2d 1063 ; Mattaway v State of New York, UID No. 2016-049-017 [Ct Cl, Weinstein, J., Apr. 25, 2016]).
The Court turns to the portion of the Motion seeking permission to serve and file a Claim late. Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed Claim asserts a negligence cause of action (CPLR § 214, a three-year Statute of Limitations). Movant asserts that the claim accrued on September 6, 2014. The Court concludes that, based upon the information provided in the proposed Claim, the statute of limitations had not yet expired when the Motion was served upon Defendant on August 25, 2017, and filed with the Court on August 28, 2017.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 ). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Here, Movant's counsel asserts that the failure to timely file a claim was due to a clerical error in listing the date of accrual on Movant's file (Bonilla Affirmation, ¶ 17). It is well settled, however, that law office failure is not an adequate excuse for failing to meet statutory filing deadlines (see Langner v State of New York, 65 AD3d 780, 783 [3d Dept 2009]). However, the tender of a reasonable excuse for delay in filing a claim is not a precondition to permission to file a late claim such as to constitute a sine qua non for the requested relief (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policeman's & Firemen's Retirement Sys., supra at 981).
The next three factors to be addressed - whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant - are interrelated and will be considered together.
Defendant asserts that the motion was served on August 28, 2017,(3) 1,087 days after the date of the alleged incident. Defendant further states that, although Movant has established that prison officials were aware of the assault when it occurred, since he was treated for his injuries by staff, he has not established that the State was aware of "the precise claim now being asserted, namely, that it permitted or is somehow responsible for such assaults" (see Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv denied 99 NY2d 589  [emphasis in original]). Knowledge of an accident or injury, without more, does not constitute knowledge of "the essential facts constituting the claim" as required (see Matter of Felice v Eastport/South Manor Central School Dist., 50 AD3d 138, 155 [2d Dept 2008]; Calderon v State of New York, UID No. 2008-015-017 [Ct Cl, Collins, J., March 3, 2008]). Defendant concludes that Movant has failed to establish that the State had notice of the essential facts constituting the Claim, the concomitant opportunity to investigate, and that no prejudice would result should this Motion be granted (see Affirmation of Sean Virkler, Esq., Assistant Attorney General [hereinafter, "Virkler Affirmation"], ¶ 14). However, Defendant did not assert that it lacked notice of the essential facts constituting the Claim and, in fact, Movant served Defendant with a Notice of Intention to File a Claim on November 28, 2014, within 90 days of accrual of the Claim (Bonilla Affirmation, ¶ 3 and Ex. 1 attached). That Notice of Intention specifically contains Movant's assertion that he was assaulted as a result of Defendant's negligence, and that he believed DOCCS owed him a greater degree of care because his safety was in jeopardy after having been exposed as a confidential informant. Therefore, the Court concludes that Defendant had notice of the essential facts constituting the Claim and, thus, an opportunity to investigate the circumstances underlying the Claim. The Court does not see, nor has Defendant established, any substantial prejudice to Defendant arising from the delay. These factors, therefore, weigh in Movant's favor.
The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant may have a possible alternate remedy, as Movant does not state he does not know who assaulted him. Thus, Movant may have a possible alternate remedy against the alleged assailant.
The sixth, final and perhaps most important factor to be considered is whether the proposed Claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 , affd sub nom. Donald v State of New York, 17 NY3d 389 , quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
"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 ; see Flaherty v State of New York, 296 NY 342, 346 ; Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). As in any other negligence action, "the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived" (Sanchez v State of New York, supra at 252; see Basso v Miller, 40 NY2d 233, 241 ; Smith v County of Albany, 12 AD3d 912, 913 [3d Dept 2004]). Even though the "precise manner in which the harm occurred" may not have been foreseeable, liability attaches if it was "within the class of reasonably foreseeable hazards" to which the duty applies (Sanchez v State of New York, supra at 252; Rodriguez v City of New York, 38 AD3d 349, 352 [1st Dept 2007]). Moreover, it applies to those risks that were foreseeable, "not simply by actual notice but by actual or constructive notice - by what the 'State knew or had reason to know' " (Sanchez v State of New York, supra at 255, quoting dissenting op at 260 [emphasis in original]). In the instant Claim, it encompasses those risks that Defendant reasonably should have foreseen in the context of its operation of a prison and having custody of inmates forcibly surrounded by felons - many of them with a proven capacity for violence (Sanchez v State of New York, supra at 256). Defendant'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. The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (Sanchez v State of New York, supra at 256; Elnandes v State of New York, 11 AD3d 828 [3d Dept 2004]).
Here, Movant asserts that, because the State previously had placed Movant under protective custody due to his status as a confidential informant at Mid-State, the State failed to take reasonable steps to protect him when it placed him in the general prison population at Mid-State and failed to protect Movant from a foreseeable risk of harm (Bonilla Affirmation, ¶¶ 25, 26).
In opposition, Defendant has submitted the Declaration of Christopher M. Martuscello, Deputy Chief in the Office of Special Investigations (hereinafter, "OSI") for DOCCS. Deputy Chief Martuscello states that one of his duties is to maintain a database of Confidential Informants for OSI, and that he has searched the database and determined that there is no record of Movant "ever being a Confidential Informant for the [OSI]" (Ex. A, ¶¶ 5, 6 attached to Virkler Affirmation). However, the Declaration does not state that the only Confidential Informants DOCCS has are listed on the OSI database. There is no statement, or even suggestion, that OSI maintains the only database of DOCCS' Confidential Informants or that individual prisons or corrections personnel do not maintain their own confidential informants. Thus, the Court, at this stage of the proceedings, accepts Movant's assertion that he was a Confidential Informant. Defendant also asserts that the proposed Claim lacks the appearance of merit because, when Movant was returned to DOCCS' custody on July 7, 2014, and was transferred to Mid-State on or about July 18, 2014, he did not note any enemies or safety concerns.
In addition, it is alleged Movant did not make a request for protective custody upon his arrival at Mid-State and never requested protective custody at all in 2014. Attached to Defense counsel's Affirmation as Exhibit C is an affidavit from Corrections Captain Linda Goppert, which states that she searched the Superintendent's files for the year 2014 and did not find any requests for protective custody from Movant (Virkler Affirmation, ¶ 9). Defendant concludes that, based on the fact that Movant did not have a special status, did not express any safety concerns, and did not request protective custody, Defendant did not have notice that such an assault was likely (id., ¶ 10).
At this stage of the proceeding, it should be noted the Court generally takes as true factual allegations of Movant. Based upon the entire record, including the proposed Claim, the Court finds that the proposed Claim has the appearance of merit and Movant's papers contain some evidence that the assault was foreseeable. Movant need only establish the appearance of merit; he need not prove a prima facie case at this stage of the proceedings.
In accordance with the foregoing, the Court finds that the preponderance of factors considered weigh in Movant's favor. The mix of circumstances presented by this case fall well within the remedial purposes of the amendments to the Court of Claims Act enacted in 1976 (L 1976, ch 280), which was designed to vest in the Court of Claims broader discretion than previously existed to permit late filing, indicated a strong concern that litigants with meritorious claims be afforded their day in court (Calzada v State of New York, 121 AD2d 988, 989 [1st Dept 1986]; Plate v State of New York, supra at 1036). Movant has provided ample basis for a favorable exercise of this Court's discretion to grant him leave to file a late claim against the State for placing Movant in the general population at Mid-State as set forth above. Therefore, within forty-five (45) days of the date of filing of this Decision and Order, Movant shall file with the office of the Clerk of the Court his proposed Claim against the State of New York and serve a copy of the proposed Claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing his Claim, Movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
February 9, 2018
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered on Movant's application for permission to file a late claim:
Notice of Motion, Affirmation in Support,
Exhibits Attached 1
Affirmation in Opposition, Exhibits attached 2
1. That Claim was assigned Claim No. 128468.
2. Movant, appearing pro se at that time, served a Notice of Intention to File a Claim upon Defendant on November 28, 2014 (within 90 days of the September 6, 2014 date of accrual), thus, extending Movant's time to serve and file the Claim to two years from the date of accrual, or until September 6, 2016.
3. The Affidavit of Service attached to the Motion papers avers that the Motion was served on August 25, 2017. A Motion is served when it is placed in the mail (CPLR 2103[b]), unlike service of a Claim, which is deemed served when received by Defendant (Court of Claims Act § 11[a][i]).