Application to file and serve late claim alleging that defendant negligently failed to protect claimant from assault by fellow inmates is granted as defendant will suffer no prejudice and allegations provide cause to believe valid cause of action may exist.
|Claimant(s):||DARREN V. LYNCH|
|Claimant short name:||LYNCH|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect the proper defendant.|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||DARREN V. LYNCH
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
By: Glenn C. King, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 21, 2019|
|See also (multicaptioned case)|
Claimant moves for permission to file and serve a late claim pursuant to Court of Claims Act 10 (6). Defendant opposes the claimant's application.
Claimant is currently an inmate at Upstate Correctional Facility. The proposed claim alleges that on June 11, 2019, in the "North (Main) Yard" at Clinton Correctional Facility, claimant was attacked by fellow inmates, and injured, due to the negligence of defendant's correction officers.
In particular, the proposed claim (verified on August 5, 2019) alleges that at the end of a recreation period, in the prison yard, a group of "white inmates" were attacked by a larger group of "black inmates" and that the defendant's correction officers failed to timely and effectively end "the brawl." Claimant further alleges that he should not have been in the recreation yard at the time of the incident because he "still had 5 more days of No Recreation Sanctions pending." As a result of "the brawl," claimant "suffered multiple cuts, slashes, and contusions."
Court of Claims Act section 10 (3) required that the claim be filed and served within ninety days of June 11, 2019, or until September 9, 2019.
Rather than timely filing and serving his claim, prior to September 9, 2019, claimant made this application to file and serve a late claim on August 12, 2019.
Court of Claims Act 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time 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."
As set forth above, the late claim application was served on August 12, 2019, within the ninety day period provided for filing and service of the claim. Claimant's cause of action sounding in negligence is not time-barred by the limitations periods provided by CPLR Article 2.
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 ).
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 ).
Claimant seeks to excuse his delay in filing and serving the claim by alleging that he "was not aware of the short filing period set forth in the Court of Claims Act" and that his incarceration "compounded" his "Lack of Knowledge." It is well-settled that ignorance of the law does not excuse failure to comply with the applicable filing and service requirements (Sevillia v State of New York, 91 AD2d 792 [3d Dept 1982]; Powell v State of New York, 187 AD2d 848, 849 [3d Dept 1992]).
Although claimant has failed to offer a reasonable excuse for his failure to timely file and serve the claim, "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, Inc., 55 NY2d at 981).
Defendant does not deny notice of the essential facts constituting the claim or deny that it had a timely opportunity to investigate the circumstances underlying the claim.
The Court again notes that the application to file and serve a late claim was made within the ninety day period in which the claim could have been lawfully filed and served without court permission. Defendant has ample opportunity to investigate the claim as the "delay was minimal and the respondent was not prejudiced thereby" (Hughes v State of New York, 25 AD3d 800 [2d Dept 2006]).
Claimant has no reasonably available alternative remedy.
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 Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
Defendant has not offered an affidavit disputing the factual allegations of the proposed claim 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]).
The Court finds that the proposed claim alleging that defendant's employees negligently failed to protect claimant from assault by fellow inmates and/or were negligent in response to the outbreak of violence is not patently without merit, and, accepting the claimant's allegations as true, provides cause to believe that a meritorious cause of action may exist.
Based upon a balancing of the factors set forth in section 10 (6), the Court grants the motion and claimant is directed to file and serve his claim in compliance with this Decision and Order and sections 11 and 11-a of the Court of Claims Act, within sixty (60) days of the filing of this Decision and Order.
November 21, 2019
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Notice of Motion, filed August 20, 2019;
2. Affidavit of Darren Lynch, sworn to August 5, 2019, and attached proposed verified claim;
3. Affirmation in Opposition of Glenn C. King, dated November 8, 2019.