Pro se inmate's motion for permission to file and serve a late claim to recover for injuries arising out an assault while incarcerated at Collins Correctional Facility is denied. Movant lacked an excusable delay, failed to identify the person he advised that he was at risk and state what he told the unidentified person at the correctional facility. Further, there was nothing in the record to establish that the State was aware that movant had been assaulted or had knowledge of the essential facts within 90 days. Finally, movant failed to establish that his claim would have merit if it were to proceed.
|Claimant short name:||CARRASCO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||JOSE CARRASCO, Pro Se|
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: Michael T. Feeley, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 9, 2018|
|See also (multicaptioned case)|
Movant Jose Carrasco, an inmate proceeding pro se, moves pursuant to Court of Claims Act § 10 (6) for permission to file and serve a late claim to recover for injuries sustained when he was allegedly assaulted and beaten due to the negligence of the State in failing to protect him while incarcerated at Collins Correctional Facility (Collins). Defendant State of New York opposes the motion.
A motion seeking permission to file and serve a late claim must be brought "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 ). Movant was allegedly assaulted on May 18, 2017, August 8, 2017 and on August 22, 2017. The applicable statute of limitations for a claim based on the negligent failure to protect an inmate is three years (CPLR 214). Movant's motion was filed on December 28, 2017, within three years of the alleged assaults. Accordingly, movant's motion is timely.
The Court of Claims is vested with broad discretion to grant or deny permission to late file a claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In determining whether to grant permission to late file a claim, the Court must 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 [movant] has any other available remedy" (Court of Claims Act § 10 ). The enumerated statutory factors are not exhaustive and the presence or absence of any one factor is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ). Defendant argues that movant failed to adequately address each of these factors.
The first factor to be considered by the Court is whether the delay in filing and serving a claim was excusable. Movant argues that his failure to timely file a claim was excusable as he was placed in IPC (inmate protective custody) on August 22, 2017, denied "legal materials," and lost much of his legal work while in transit from Collins to Marcy Correctional Facility (Marcy) from October 2, 2017 to October 7, 2017. Movant fails to explain why he failed to file and serve a claim following the alleged assaults of May 18, 2017 or of August 8, 2017, or identify the legal materials he was missing or explain why any missing document prevented him from filing a claim. It has been held that access to legal material and incarceration are insufficient excuses for failure to timely file and serve a claim (Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002]), lv dismissed 99 NY2d 589 ; Matter of Sevilla v State of New York, 145 AD2d 865 [3d Dept 1988]).The lack of an excusable delay is, however, only one of the factors to be considered.
The next three factors of notice, opportunity to investigate and prejudice are intertwined and may be considered together (Brewer v State of New York, 176 Misc 2d 337 [Ct Cl, 1998]). Movant argues that he made Collins aware that he was at risk, that he requested a transfer and that "[a]s the documents will show" defendant had "all knowledge of prior, present and future attacks, against the [movant's] person" (see proposed claim). Movant failed to identify the person to whom he allegedly spoke at to Collins, failed to state what he told the unidentified person at Collins, and failed to identify or attach the documents that allegedly would show that defendant had knowledge of the assaults. Moreover, even if the defendant had been aware that movant had been assaulted, there is nothing in the record to suggest that defendant had knowledge of the essential facts within ninety days or shortly thereafter to put it on notice that movant would allege that its negligence caused or contributed to the assaults (De Jesus v County of Albany, 267 AD2d 649 [3d Dept 1999]).
Defendant alleges that the passage of time has impeded its ability to investigate and question witnesses to its prejudice. It has been held that even an eight-month delay in filing a claim substantially prejudices the defendant in maintaining a defense (see Matter of Maurantonio v State of New York, 266 AD2d 290 [2d Dept 1999]). Here, it has been almost nine months from the first assault and approximately six months from the third assault until movant filed his motion to late file.
Another factor to consider is whether movant has another remedy available. Movant may have an alternate remedy directly against the correction officer(s) who allegedly failed to protect him through a civil rights action pursuant to 42 USC § 1983, albeit in another court.
The most important factor to consider is merit as it would be futile to permit a claim to be filed which was subject to dismissal (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]. It is movant's burden to show that the proposed claim is not patently groundless, frivolous or legally defective and that there is a 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]). This standard does not require movant to establish the merit of his claim or to overcome all legal objections before the Court will permit the filing of a late claim (Id. at 11-12.).
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]). "Because the State is not an insurer of an inmate's safety, it will be liable in negligence for an assault by another inmate only upon a showing that it failed to exercise adequate care to prevent that which was reasonably foreseeable" (Melvin v State of New York, 101 AD3d 1654 [4th Dept 2012]). Ultimately, movant will have to prove that the State knew or should have known that movant was at risk of being assaulted and failed to protect him, that the State knew or should have known that the assailant was prone to assaulting others and failed to take any precautionary measures, or that the State had notice and opportunity to intervene but failed to act (Sanchez v State of New York, 99 NY2d 247, 252 (2002)). While movant generally alleges that he made Collins aware that he was at risk, he provides no details. Nothing in the proposed claim indicates whether he was assaulted by one or more individuals, identifies his assailant(s), or even alleges that his assailant(s) were known to be dangerous. Nothing in the proposed claim indicates whether he had a past history with or was threatened by his assailant(s). Nothing in the proposed claim indicates how the defendant was made aware that claimant was at risk or describes the risk. The simple allegation that defendant knew he was at risk is too general, conclusory and unsupported to establish a meritorious claim (Sandlin v State of New York, supra at 725).(1)
Upon consideration of the factors set forth in Court of Claims Act § 10 (6), movant's motion no. M-91643 for late claim relief is denied, without prejudice.
April 9, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and affidavit of Jose Carrasco sworn to November 29, 2017, with annexed proposed claim;
2. Affidavit in response of Assistant Attorney General Michael T. Feeley, sworn to February 6, 2018.
1. At paragraph 20 of the affidavit in response of Assistant Attorney General Michael T. Feeley, there is a reference to a notice of intention supposedly attached to movant's motion papers. No notice of intention is attached to movant's motion papers as filed. Thus, this Court has not read nor considered any allegation alleged in any notice of intention.