Motion for leave to file and serve a late claim alleging negligent hiring, supervision and assault and battery by correctional facility employees was granted.
|Claimant short name:||GAGNON|
|Footnote (claimant name) :||The caption has been amended to protect the identity of the claimant pursuant to Civil Rights Law 50-b (1).|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Law Offices of Daniel W. Isaacs, PLLC
By: Daniel W. Isaacs, Esq.
|Defendant's attorney:||Honorable Letitia James, Attorney General
By: Shadi Masri, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||December 31, 2019|
|See also (multicaptioned case)|
Movant seeks leave to file and serve a late claim alleging a cause of action for negligent hiring, training and supervision.
In his proposed verified claim, movant, an inmate of the Department of Corrections and Community Supervision (DOCCS), alleges he was beaten and sexually assaulted by correction officers at Bare Hill Correctional Facility on June 4, 2019. As set forth in the proposed claim:
"The claim occurred when the Claimant . . . was assaulted, battered and sexually assaulted by Five (5) Correctional Officers without cause or provocation. These acts of violence included, inter alia, removing his pants, battering Claimant about his buttocks using a prison-issued sneaker, fondling his genitalia without his consent, placing a garbage bag over his head and twisting his left arm behind his back exacerbating a prior, pre-existing condition. Claimant was also denied any food for a five-day period in retribution for his having complained about the aforementioned attack" (movant's Exhibit 4, ¶ 3).
The proposed claim further alleges that the State "was negligent in its hiring, training and supervision of the aforementioned Correctional Officers, who were acting in the scope and course of their employment" (id.). Causes of action for the intentional torts of assault and battery are not specifically alleged.
The first issue for determination upon a late claim motion is whether the application is timely. Court of Claims Act § 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 period within which a cause of action for negligence may be asserted against a citizen of the state is three years (CPLR § 214 ). Consequently, the instant motion filed on October 28, 2019 is timely with respect to movant's proposed negligence cause of action. While the torts of assault and battery are not specifically alleged in the proposed claim, to the extent the facts may support such cause(s) of action the statute of limitations is one year (CPLR 215 ). The instant motion is therefore timely with respect to those causes of action as well.
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."
Turning to the statutory factors, 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 v State of New York, 158 AD3d 961, 962 [3d Dept 2018]; Matter of Martinez v State of New York, 62 AD3d 1225; Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]).
The excuse advanced by movant's counsel for failing to timely file and serve a claim is that he improperly verified a prior claim, which was also improperly served by overnight delivery service (see Court of Claims Act § 11 [a]). Ignorance of the law, such as that described above, is not an acceptable excuse for a layman, much less a licensed attorney (Borawski v State of New York, 128 AD3d 628 [2d Dept 2015]; Olsen v State of New York, 45 AD3d 824 [2d Dept 2007]; Matter of Robinson v State of New York, 35 AD3d 948 [3d Dept 2006]). 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 of the claim and a sufficient opportunity to investigate by virtue of his report of the incident on June 5, 2019, one day after it occurred, and the subsequent investigation of the matter by the Office of Special Investigations (see movant's Exhibits 1 and 2). In addition, the Attorney General was timely sent the prior claim, although it was improperly served. The Court is satisfied that movant sufficiently apprised DOCCS of the essential facts constituting the claim so as to permit an investigation and evaluation of its potential liability. In opposition to the motion, the State failed to demonstrate it will suffer any prejudice. These factors, therefore, 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 that a valid cause of action exists (Matter of Martinez v State of New York, 62 AD3d 1225, 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. An assault such as that described by the movant in his verified proposed claim adequately supports causes of action for negligent hiring, training and supervision. Moreover, whether the State may be held vicariously liable for the intentional torts of its employees depends upon whether the conduct was undertaken in furtherance of the employer's business and within the scope of employment (Rivera v State of New York, ___NY3d ___ 2019 NY Slip Op 08521 ). While no definitive determination on that issue can be made at this early stage, in addition to stating a cause of action for negligence, the facts alleged in the claim could give rise to a viable claim against the State for the intentional torts of its correction staff. Such causes of action may be stated in the alternative (CPLR 3014; Pickering v State of New York, 30 AD3d 393 [2d Dept 2006]). Accordingly, the merit of the proposed claim was sufficiently established for the purpose of the instant application.
As for the final factor to be considered, it does appear that movant may have alternative remedies available in Supreme or Federal Court under 42 USC § 1983.
Insofar as the majority of factors, including the potential merit of the claim, weigh in movant's favor, the Court will grant the instant application.Based on the foregoing, movant's application for leave to serve and file a late claim is granted and movant is directed to file and serve his claim in accordance with Court of Claims Act § 11 and § 11-a within forty-five days of the date this Decision and Order is filed.
December 31, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims