Motion seeking permission to late file and serve a negligence claim arising out of an alleged assault at a state correctional facility is denied without prejudice to filing a subsequent motion.
|Claimant short name:||WORKS|
|Footnote (claimant name) :||The Court has amended the caption sua sponte in accordance with 22 NYCRR §206.5 (e) as the proposed claim alleges that the movant was the victim of a sexual assault.|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||JAMELL WORKS, Pro Se|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Thomas G. Ramsay, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 2, 2020|
|See also (multicaptioned case)|
Pro se movant J. W. moves this Court for permission to late file and serve a negligence claim pursuant to Court of Claims Act § 10 (6) based on an alleged assault which occurred on October 13, 2019 while he was incarcerated at Orleans Correctional Facility (Orleans). Defendant opposes the motion.
A motion for permission to late file and serve a 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 ). Actions against a citizen of the state for negligence are governed by the three-year statute of limitations of CPLR 214. Movant's motion was filed on June 30, 2020, within three years of the alleged assault from which defendant negligently failed to protect him.(2) 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 ).
The first factor to consider is whether the delay in filing the claim was excusable. Movant argues that his failure to file a claim within the prescribed time was due to his ignorance of the law and his incarceration. Neither incarceration nor ignorance of the law are acceptable excuses for the delay in filing a claim (Matter of Robinson, 35 AD3d 948 [3d Dept 2006]; Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 ). This factor weighs against movant's motion.
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 ). Movant fails to address any of these three factors. Defendant, however, attaches to his opposition papers as Exhibit A, a copy of the Orleans Correctional Facility's Watch Commander's Log for October 13, 2019. Nothing in this log references any incident involving movant on October 13, 2019. In fact, movant is not mentioned anywhere in the log. As the defendant had no notice of the incident complained of, the three factors of notice, opportunity to investigate and prejudice weigh against the granting of the motion.
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 claimant'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 ). While this standard places a heavier burden upon a party who has filed late, this standard does not require claimant 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).
In the proposed claim, movant alleges that he was sexually assaulted at Orleans on October 13, 2019 due to the negligence of the State "for the failure to adequately protect [him] from injury by sleeping on the job. . . ". The State must provide inmates with reasonable protection against foreseeable risks of harm, even by other inmates (Flaherty v State of New York, 296 NY 342 ; 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]). And foreseeability is defined by either demonstrating actual or constructive notice (Sanchez v State of New York, 99 NY2d 247, 255 ). Here, nothing in the proposed claim identifies the alleged assailant, or even indicates whether the assailant was a corrections officer, a visitor or another inmate. In addition, movant fails to identify the person who allegedly fell asleep "on the job" when he was assaulted or any other Orleans employee who might have knowledge of the alleged assault. Finally, nothing in the proposed claim asserts any allegation that the State had either actual or constructive notice that this assailant would assault movant.
Court of Claims Act § 10  requires that an application for late claim relief be accompanied by the proposed claim to be filed "containing all of the information set forth in section eleven of this act. . . ". Should the proposed claim fail to satisfy the pleading requirements of section 11 (b), the proposed claim would be jurisdictionally defective, requiring its dismissal once filed (Lepkowski v State of New York, 1 NY3d 201 ). Section 11 (b) of the Court of Claims Act states that "[t]he claim shall state the time when and place where such claim arose [and] the nature of same." Movant states in his proposed claim that he was sexually assaulted on October 13, 2019 at Orleans. Movant fails to state the time of day the alleged assault occurred or state the place within Orleans where the assault occurred.
Movant does state in the proposed claim that some other correctional facilities limit the number of persons who can be in a bathroom or in a "dayroom." He does not, however, state that the October 13, 2019 alleged assault occurred in a "dayroom" or in a bathroom, and if so, in which specific "dayroom" or bathroom at Orleans. At paragraph 11 of the proposed claim, movant states that he has attached "a sketch of the place of the accident." No such sketch is annexed to the proposed claim provided to the Court as part of movant's motion papers. Without identifying the location of the assault, the assailant or any correction officer or Orleans employee with knowledge of the assault, and without any notation in the watch log indicating that an incident involving movant occurred on October 13, 2019, the proposed claim would be insufficient pursuant to Court of Claims Act § 11 (b). Accordingly, the Court concludes that the proposed claim does not have the appearance of merit.
The final factor to consider is whether movant has another remedy available. Movant could bring an action against his assailant, albeit in another Court.
Based on the foregoing, movant's motion no. M-95630 for permission to late file a claim is denied without prejudice. Movant may file a subsequent motion for permission to late file a claim that includes a proposed claim which is in compliance with Court of Claims Act § 11 (b) and is accompanied by an affidavit which addresses all of the factors set forth in Court of Claims Act § 10 (6). Any subsequent motion must be filed prior to the expiration of the applicable statute of limitations.
November 2, 2020
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 supporting affidavit of J.W. sworn to June 17, 2020, with annexed proposed claim; and
2. Opposing affirmation of Assistant Attorney General Thomas G. Ramsay, Esq. dated August 20, 2020, with annexed Exhibit A.
2. See the second paragraph of the proposed claim annexed to claimant's motion.