Opinion
# 2014-032-134 Claim No. None Motion No. M-85518
01-07-2015
ADAM TEMPLE v. THE STATE OF NEW YORK
Adam Temple, Pro Se Hon. Eric T. Schneiderman, NYS Attorney General By: Michael T. Krenrich, Assistant Attorney General, Of Counsel
Synopsis
Case information
| UID: | 2014-032-134 |
| Claimant(s): | ADAM TEMPLE |
| Claimant short name: | TEMPLE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-85518 |
| Cross-motion number(s): | |
| Judge: | JUDITH A. HARD |
| Claimant's attorney: | Adam Temple, Pro Se |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Michael T. Krenrich, Assistant Attorney General, Of Counsel |
| Third-party defendant's attorney: | |
| Signature date: | January 7, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Adam Temple (movant) moves this Court for an Order pursuant to Court of Claims Act § 10 (6) granting him permission to file and serve a late claim. His proposed claim alleges that defendant was negligent in failing to protect movant from an assault by another inmate, as well as medical malpractice and/or medical negligence.
The Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim (Matter of Gonzalez v State of New York, 299 AD2d 675 [3d Dept 2002]). In making a determination to grant or deny such an application, the Court must determine whether the claim would be timely under Article 2 of the CPLR and then consider certain statutory factors (Court of Claims Act § 10 [6]). These factors are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the State was substantially prejudiced; (5) whether the claimant has any other available remedy; and (6) whether the claim appears to be meritorious (Court of Claims Act § 10[6]). The presence or absence of any one of said factors is not dispositive (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]). However, the last factor is the most decisive inasmuch as it is futile to proceed with a meritless claim even if the other factors support the granting of the claimant's application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]).
In the present case, movant alleges negligence (the failure to prevent the assault), as well as medical malpractice and/or medical negligence against defendant. Causes of action for negligence, including medical negligence, have a statute of limitations of three years (CPLR § 214). Causes of action for medical malpractice have a statute of limitations of two years and six months (CPLR § 214-a). As the accrual date alleged herein is August 17, 2012, movant's motion would be timely under Article 2 of the CPLR. Accordingly, the Court must now consider the statutory factors set forth in Court of Claims Act § 10 (6).
The first factor to consider is whether the delay in filing and serving the claim was excusable. Movant alleges that he was unaware of the filing period and had a limited ability, if any, to confer with counsel. However, neither ignorance of the law nor the inability to retain counsel have been held to be sufficient reasons for a delay in filing (see Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Simpson v State of New York, 96 AD2d 646 [3d Dept 1983]). Accordingly, this factor weighs against the granting of the movant's motion.
The three factors of notice, opportunity to investigate and prejudice are all intertwined and may be considered together. Movant alleges that defendant had notice of the essential facts constituting the claim and an opportunity to investigate, because the assault occurred at Coxsackie Correctional Facility (Coxsackie) and because after waiting several hours in the infirmary at Coxsackie, movant was transferred to Albany Medical Center. In addition, upon his return to the facility, movant was placed in solitary confinement. Defendant does not dispute the same nor has defendant alleged that it has been prejudiced in any manner. Accordingly, these factors weigh in favor of granting the movant's motion.
Movant alleges that he does not have another adequate available remedy and defendant has not argued to the contrary. Accordingly, this factor weighs in favor of granting movant's motion.
The final factor for the Court to consider is whether the claim appears to be meritorious. In order to establish a meritorious cause of action, movant need not demonstrate a likelihood that he will prevail on his claim; he need only show that the proposed claim is not patently groundless, frivolous, or legally defective (see Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). In addition, the Court must find, upon a consideration of the entire record, including the proposed claim and any affidavits or exhibits, that there is reasonable cause to believe that a valid cause of action exists (id.). While there is a heavier burden on a movant who is seeking to file late than upon a claimant whose claim is timely, movant is not required to definitively establish the merits of his claim or overcome all legal objections thereto (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
It is well settled that the State is required to use reasonable care to protect inmates from foreseeable risks of harm, including the risk of assault by other inmates (Mullamphy v State of New York, UID No. 2011-010-024 [Ct Cl, Ruderman, J., Sept. 20, 2011]). However, as set forth by the Court of Appeals in Sanchez v State of New York (99 NY2d 247, 256 [2002]), ". . . the State's duty to prisoners does not mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. . . .The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State."
To establish liability in an inmate assault case, claimant must demonstrate one of the following: (1) the State knew or should have known that claimant was at risk of being assaulted and yet failed to provide claimant with reasonable protection; (2) the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or (3) the State had ample notice and opportunity to intervene but did not act (Sanchez v State of New York, 288 AD2d 647, 648 [3d Dept 2001]). The mere fact that a correction officer is not present at the time and place of an assault does not rise to an inference of negligence absent a showing that the correctional facility officials had notice of a foreseeable dangerous situation (Padgett v State of New York, 163 AD2d 914 [4th Dept 1990], lv denied 76 NY2d 711 [1990]).
In the present case, movant has not alleged that the State knew or should have known that claimant was at risk of being assaulted and still failed to provide claimant with reasonable protection; that the State knew or should have known that the assailant was prone to perpetrating such an assault and the State did not take proper precautionary measures; or that the State had ample notice and opportunity to intervene, but did not act. He only states that on August 17, 2012, while incarcerated at Coxsackie Correctional Facility (Coxsackie), he was attacked by another inmate in the courtyard, which is insufficient for establishing that his proposed cause of action for negligence is meritorious.
As to movant's proposed claim seeking relief for medical negligence and/or medical malpractice, the Court concludes that movant has failed to establish merit.
It is well-settled that the State owes a duty to its incarcerated citizens to provide them with adequate medical care (Mullally v State of New York, 289 AD2d 308 [2d Dept 2001]). To prove that the State failed in this duty and committed medical malpractice, a claimant must show that defendant departed from the accepted standard of medical care, and that said departure was a proximate cause of the injury (id.). Expert medical evidence is required to demonstrate that the diagnosis and treatment rendered to a movant departed from accepted medical practices and standards (Matter of Perez v State of New York, 293 AD2d 918 [3d Dept 2002]). A cause of action sounding in medical negligence assumes that the claimant's allegations are determinable on common knowledge alone, without the use of expert testimony (Coursen v New York Hosp.-Cornell Med. Ctr., 114 AD2d 254, 256 [1st Dept 1986]). This theory, however, is very limited and only applies to cases in which the fault is so obvious that the trier of fact does not need an expert to explain why something is or is not standard medical procedure.
In the present case, movant alleges only that he had to sit inside the Coxsackie infirmary for over four hours before he was seen and that he was then rushed to Albany Medical Center (where he alleges he had to sit for another several hours before the laceration on his face was stitched). The question regarding whether the care given to movant or the alleged delay in rendering such care affected or exacerbated his injuries is not a matter of common knowledge which could be decided in the absence of expert testimony. Accordingly, to the extent movant seeks permission to file a late claim for medical malpractice and/or medical negligence, the Court concludes that he has failed to show that said causes of action are meritorious.
The Court has considered all of the factors set forth in Court of Claims Act § 10 (6) and concludes that they weight against granting movant's motion for late claim relief.
CONCLUSION
Based upon the foregoing, movant's motion for permission to file and serve a late claim (M-85518) is denied.
January 7, 2015
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
Papers Considered:
1. Claimant's Motion for Permission to File a Late Claim, dated August 10, 2014, with proposed Claim.
2. Affirmation in Opposition, of Michael T. Krenrich, AAG, dated July 1, 2014, with Exhibit A.
3. Affirmation in Opposition, of Michael T. Krenrich, AAG, dated September 5, 2014.
4. Reply, dated September 19, 2014.
Papers Filed: None.