New York State Court of Claims

New York State Court of Claims
KEITT v. THE STATE OF NEW YORK, # 2020-041-035, Claim No. NONE, Motion No. M-95793


Claimant is granted permission to file and serve late claim where allegations of proposed claim provide cause to believe a cause of action based upon defendant's alleged negligence in failing to adequately protect inmate-claimant from assault by fellow inmate may exist.

Case information

UID: 2020-041-035
Claimant(s): DEVIN KEITT
Claimant short name: KEITT
Footnote (claimant name) :
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-95793
Cross-motion number(s):
Claimant's attorney: DEVIN KEITT
Pro Se
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
By: Christina Calabrese, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: October 15, 2020
City: Albany
Official citation:
Appellate results:
See also (multicaptioned case)


Claimant, an inmate at Wende Correctional Facility, moves for permission to file a late claim pursuant to Court of Claims Act 10 (6).

Defendant opposes the motion.

The proposed claim alleges that on April 17, 2018, at 3:17 a.m., at Clinton Correctional Facility, he suffered "2nd degree burns on 50% of his back" allegedly because he was "a target for assassination from White Supremacist having someone throw boiling water mixed with oil on claimant." The proposed claim further alleges that defendant was negligent and violated claimant's constitutional rights by failing to "lock up and secure the Hot Pot in a proper manner" and by failing to "train or supervise employees." The proposed claim does not identity the assailant who allegedly threw "boiling water mixed with oil on claimant."

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 [1982]).

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 [1991]).

The claim arose nearly two years prior to the Governor's March 20, 2020 COVID-19 Executive Order tolling/suspending time limits for filing and service of legal process. Claimant offers no explanation as to why his delay in filing and serving the claim within ninety days of its accrual, on April 17, 2018, as required by Court of Claims Act section 10, is excusable.

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 argues that it lacked timely notice of the essential facts constituting the claim and had no timely opportunity to investigate the circumstances underlying the claim. While, to some extent, defendant has "been prejudiced by this lack of notice and a potential failed opportunity to investigate" the alleged incident, defendant presumably was, and is, able to review facility records and/or reports regarding the date and incident in question if the facts alleged by claimant are truthful and accurate.

With respect to the merit of the proposed claim, Savino v State of New York (199 AD2d 254, 255 [2d Dept 1993]), reminds that "it would be futile to permit a defective claim to be filed even if the other factors . . . supported the granting of the claimant's motion."

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]).

The law applicable to consideration of an inmate-on-inmate assault is clear. "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 [2002]). "This duty, however, is limited to providing reasonable care to protect inmates from risks of harm that defendant knew or should have known were foreseeable" (Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). "The State . . . is not an insurer of inmate safety, and negligence cannot be inferred solely from the happening of an incident" (Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]).

In determining if the defendant provided reasonable care to protect an inmate from assault the court may consider whether the claimant had previous known encounters with his assailant or had listed his assailant on an "'enemies list' with the institution" (Elnandes v State of New York, 11 AD3d 828, 829 [3d Dept 2004]). The court may also consider whether the assailant was "a known dangerous prisoner" (Auger v State of New York, 263 AD2d 929, 930 [3d Dept 1999]; see Wilson v State of New York, 36 AD2d 559 [3d Dept 1971]). Further, the court may consider whether "claimant was a known assault risk" (Stanley v State of New York, 239 AD2d 700, 701 [3d Dept 1997]).

The defendant's potential liability for negligent supervision with respect to an inmate-on-inmate assault is not limited, however, to situations in which actual notice of a particular claimant's vulnerability or a particular assailant's violent propensities can be shown. The defendant is also charged with the duty of protecting an inmate from reasonably foreseeable risks of harm based upon "what the State reasonably should have known--for example, from its knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks" (Sanchez, 99 NY2d at 254 [emphasis in original]).

Claimant alleges that he was injured due to defendant's negligence and/or negligent supervision in failing to prevent an assault upon him by a fellow inmate because defendant allegedly permitted unrestricted access by inmates to a "Hot Pot" in which the unknown assailant allegedly heated the "boiling water mixed with oil" which was then thrown on claimant.

Defendant has not offered an affidavit, nor offered any other proof, 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 proposed claim, with respect to the defendant's alleged negligence and/or negligent supervision in permitting unrestricted inmate access to the "Hot Pot," has the appearance of merit.

Claimant's constitutional tort allegation fails to state a cause of action and thus lacks the appearance of merit. Although the Court of Appeals has recognized a narrowly defined cause of action for a state constitutional tort in the Court of Claims (Brown v State of New York, 89 NY2d 172, 177-178 [1996]), "no such claim will lie where the claimant has an [alternative] adequate remedy" (Shelton v New York State Liquor Authority, 61 AD3d 1145, 1150 [3d Dept 2009]; see Martinez v City of Schenectady, 97 NY2d 78, 83-84 [2001]; Waxter v State of New York, 33 AD3d 1180, 1181 [3d Dept 2006]; Augat v State of New York, 244 AD2d 835, 837 [3d Dept 1997], lv denied 91 NY2d 814 [1998]).

Claimant has a remedy in the Court of Claims founded upon the defendant's alleged negligence and is further able to pursue a plenary state constitutional tort action in New York State Supreme Court against the individual state actors who engaged in the conduct which allegedly violated claimant's state constitutional rights (Haywood v Drown, 556 US 729 [2009]). Claimant's state constitutional tort claim thus "does not lie" in the Court of Claims (Shelton, 61 AD3d at 1151).

With respect to claimant's federal constitutional rights allegedly being violated, the law is settled that "claims for damages against the State based on alleged deprivations of rights under the US Constitution are beyond the jurisdiction of the Court of Claims" (Shelton, 61 AD3d at 1151; see Matter of Gable Transport, Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]).

Claimant's allegation that his state and/or federal constitutional rights were violated fails to state a cause of action and, consequently, lacks the appearance of merit.

Finally, the Court notes that the claimant is not entitled to recover "Punitive damages" because "the waiver of sovereign immunity effected by section 8 of the Court of Claims Act does not permit punitive damages to be assessed against the State" (Sharapata v Town of Islip, 56 NY2d 332, 334 [1982]).

Based upon a balancing of the factors set forth in section 10 (6), the claimant's application to serve and file a late claim is granted only to the extent of a cause of action seeking compensatory damages and sounding in negligence and/or negligent supervision.

Claimant is directed to file and serve his claim in compliance with this Decision and Order and in compliance with 11 and 11-a of the Court of Claims Act within sixty (60) days of the filing of this Decision and Order with the Clerk of the Court of Claims, as such date may be affected and extended by the Administrative Order of Acting Presiding Judge Richard E. Sise, dated March 16, 2020, which tolls such time limitations periods, and until such order expires.

The claimant's application to proceed as a poor person is denied, without prejudice. The claimant, should he so choose, may renew such application directly to the Clerk of the Court of Claims when he files and serves his claim as directed above.

October 15, 2020

Albany, New York


Judge of the Court of Claims

Papers Considered:

1. Notice of Motion, filed August 14, 2020;

2. Affidavit of Devin Keitt, sworn to July 19, 2020, and attached exhibits including proposed claim verified July 19, 2020;

3. Affirmation in Opposition of Christina Calabrese, dated September 21, 2020;

4. Unsworn Reply of Devin Keitt, dated October 6, 2020.