Pro se inmate's motion for leave to serve and file a late claim alleging assault and battery by prison staff was granted.
|Claimant short name:||HASSAN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Eslam Hassan, Pro Se|
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Thomas J. Reilly, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||August 26, 2019|
|See also (multicaptioned case)|
Movant, Eslam Hassan, a pro se inmate, seeks leave to file a late claim pursuant to Court of Claims Act § 10 (6) asserting causes of action for assault and battery and medical negligence and/or malpractice.
In his proposed claim, movant alleges he was twice assaulted by correction officers at Great Meadow Correctional Facility on January 4, 2019. Movant alleges he was first assaulted by Correction Officer Jenkins outside the medical unit and, upon returning to his cell, he was assaulted by several correction officers after he asked to see a mental health professional and threatened to commit suicide. After the incidents, movant was allegedly carried to the medical unit on a stretcher. Movant alleges that medical staff failed to provide proper treatment for his injuries. In his proposed claim, movant asserts causes of action for assault and battery (first cause of action) and medical negligence and/or malpractice (second cause of action).
The first issue for determination upon a late claim motion is whether the application is timely. Section 10 (6) requires that a motion to file a late claim be made "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." The intentional torts of assault and battery are governed by a one-year statute of limitations (CPLR § 215 ; Hernandez v State of New York, 39 AD3d 709 [2d Dept 2007]). Consequently, the instant motion filed on July 29, 2019 is timely with respect to movant's proposed assault and battery cause of action. The proposed causes of action for negligence and medical malpractice are likewise timely, being governed, respectively, by a three-year and a two and one-half year statute of limitations (see CPLR 214 and 214-a; Bleiler v Bodnar, 65 NY2d 65 ; Fowles v State of New York, 152 Misc 2d 837 [Ct Cl, 1991]).
Court of Claims Act § 10 (6) permits this Court, if the applicable statute of limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following 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."
This Court has broad discretion in deciding a motion to permit the late filing of a claim (Matter of Barnes v State of New York, 164 AD3d 977 [3d Dept 2018]; Williams v State of New York, 137 AD3d 1579 [4th Dept 2016], appeal dismissed and lv denied 28 NY3d 958 ). The statutory factors are not exhaustive nor is any one factor controlling (Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009]; Edens v State of New York, 259 AD2d 729, 730 [2d Dept 1999]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Matter of Barnes, 158 AD3d 961 at 962; Matter of Martinez, 62 AD3d 1225; Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]).
The excuse advanced by movant for failing to timely file and serve a claim is that
he was confined to the Behavioral Health Unit (BHU), without access to a pen, paper or the law library, for three months immediately following the incidents. Movant further alleges that the additional nearly four-month delay in seeking permission to file a late claim was attributable to the conduct of personnel at Great Meadow Correctional Facility who either damaged or lost all of his personal property, including his legal papers and documents. While movant's confinement to the BHU without access to a pen, paper or the law library provides a reasonable excuse for the initial three-month delay, his excuse for the subsequent four-month delay is insufficient. Movant's contention that he was unable to proceed during this period due to the destruction of his legal papers and documents is belied by the fact that the instant application neither refers to nor is supported by any such papers or legal documents. Absent a reasonable excuse for this nearly four-month delay, this factor does not weigh in movant's favor.
Addressing the intertwined issues of notice, opportunity to investigate and prejudice, movant contends that the State had notice and a sufficient opportunity to investigate the claim because misbehavior reports were issued and he received a medical exam immediately following the incidents. The Court agrees that the various reports required to be generated after the use of such force together with the movant's medical records provided the State with the requisite notice and an opportunity to investigate. Inasmuch as the State has failed to demonstrate prejudice arising from the delay, these factors weigh in movant's favor.
With respect to the required showing of merit, the claim is sufficiently established if the claimant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective, and the record as a whole provides reasonable cause to believe a valid cause of action exists (Matter of Martinez, 62 AD3d 1225 at 1227; Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). Movant has met this low threshold with respect to his assault and battery cause of action. Movant alleges that, following an argument, Officer Jenkins punched him in the face and head and pushed him against the wall (proposed claim,¶ 5). Upon his return to his cell, movant allegedly asked to speak with someone from the Office of Mental Health and threatened to commit suicide due to the distress and pain inflicted by Officer Jenkins (id. at ¶ 6). In response, movant alleges multiple correction officers entered his cell, beat him, and removed him to the medical unit on a stretcher.
While the State contends that these allegations, if true, provide no basis for imputing liability to the State, the law is well settled that an employer may be liable for the intentional torts of their employees where "the act was done while the servant was doing his master's work, no matter how irregularly, or with what disregard of instructions" (Riviello v Waldron, 47 NY2d 297, 302  [internal quotation marks and citation omitted]; compare Cepeda v Coughlin, 128 AD2d 995 [3d Dept 1987], appeal denied 70 NY2d 602  with Matter of Sharrow v State of New York, 216 AD2d 844 [3d Dept 1995], lv denied 87 NY2d 801 ; see also McFadden v State of New York, 138 AD3d 1167 [3d Dept 2016], appeal dismissed 28 NY3d 947 ). Here, movant asserts that the alleged tortious conduct occurred while correction staff were acting within the scope of their employment. Notwithstanding the State's contrary assertion, whether correction personnel were acting outside the scope of their employment can not be determined from the proposed claim alone. Rather, the determination "requires looking behind the pleading to the facts underlying the occurrence" (Matter of Sharrow, 216 AD2d at 846 [internal quotation marks and citation omitted]). For the purpose of the instant motion, the allegations in the proposed claim provide reasonable cause to believe that a valid cause of action for assault and battery exists.
A different result is reached with respect to movant's proposed cause of action for medical negligence or malpractice. In order to demonstrate the potential merit of a claim for either medical malpractice or medical negligence an affidavit of merit from a physician is necessary (Decker v State of New York, 164 AD3d 650 [2d Dept 2018]; Schreck v State of New York, 81 AD2d 882 [2d Dept 1981]). No such affidavit was provided by the movant nor were his infirmary records or other similar proof submitted. "Where medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is ... required" (Wood v State of New York, 45 AD3d 1198 [3d Dept 2007] [internal quotation marks and citation omitted]). Here, even if there was a failure to provide medical treatment for the injuries allegedly inflicted by the correction officers, movant failed to demonstrate through the submission of expert opinion evidence that such failure caused or exacerbated his medical condition (see id.). For these reasons, movant failed to demonstrate the potential merit of his causes of action for medical negligence or malpractice.
As for the final factor to be considered, it does not appear that movant has any alternative avenue of redress against the State.
Insofar as the majority of factors, including the potential merit of the claim, weigh in movant's favor with respect to his proposed cause of action for assault and battery, the Court will grant the instant application with respect to this cause of action. The majority of factors for consideration with respect to the proposed cause of action for medical negligence and or malpractice do not weigh in movant's favor, however, and his application is therefore denied with respect to this proposed cause of action.Based on the foregoing, movant's application for leave to serve and file a late claim is granted with respect to his proposed cause of action for assault and battery and denied with respect to his proposed cause of action for medical negligence and or malpractice. Movant is directed to file and serve his claim in accordance with this Decision and Order and Court of Claims Act § 11 and § 11-a within forty-five days of the date this Decision and Order is filed.
August 26, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
1. Notice of Motion dated July 24, 2019;
2. Affidavit in support sworn to July 19, 2019, with attachments;
3. Affirmation of Thomas J. Reilly, A.A.G. dated August 12, 2019.