Opinion
# 2018-044-552 Claim No. None Motion No. M-91886
08-14-2018
ROBERT LATHROP v. THE STATE OF NEW YORK
ROBERT LATHROP, pro se HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General
Synopsis
Motion for late claim in inmate-on-inmate attack.
Case information
| UID: | 2018-044-552 |
| Claimant(s): | ROBERT LATHROP |
| Claimant short name: | LATHROP |
| 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-91886 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | ROBERT LATHROP, pro se |
| Defendant's attorney: | HON. BARBARA D. UNDERWOOD, ATTORNEY GENERAL BY: Mark Sweeney, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 14, 2018 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, an inmate proceeding pro se, moves for permission "to file a late notice of intention/claim." Movant seeks to recover for personal injuries allegedly received when he was attacked by a fellow inmate while in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility (Elmira). Defendant State of New York (defendant) opposes the motion.
While Court of Claims Act § 10 (6) sets forth the procedure whereby a movant may request permission from the Court to serve and file a late claim, there is no such equivalent provision whereby a proposed claimant might seek permission to file a late notice of intention. The Court will therefore treat movant's motion solely as one to file and serve a late claim and will conduct the appropriate analysis under Court of Claims Act § 10 (6).
A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). In his proposed claim, movant alleges that while he was at recreation on June 2, 2016, he was attacked from behind by another inmate and suffered a laceration on the right side of his face. The applicable statute of limitations for a cause of action alleging negligence is three years (CPLR 214 [5]). Accordingly, this motion mailed on February 5, 2018 is timely (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]).
Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;
5) 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 defendant; and
6) movant has any other available remedy.
Movant states that he served defendant with a notice of intention on September 19, 2016. Although he concedes that the notice of intention was untimely, he contends that the delay was justifiable because he had been temporarily transferred from Southport Correctional Facility (Southport) to Clinton Correctional Facility (Clinton) on July 26, 2016 for an outside Court trip. Movant asserts that during that time period, his personal property was stored at Southport and his legal work/material was in an outside Court storage bag and transported to Clinton with him. However, movant indicates that he did not receive his Court bag until approximately 25 days after he arrived at Southport. He states that because he did not have all his legal material, he was unable to complete a factually accurate notice of intention before the 90-day period expired. Movant has provided no justification for his failure to prepare a notice of intention or a claim within the time period from June 2, 2016 (when he was injured) through July 26, 2016 (when he was transferred to Clinton). The circumstances caused by movant's incarceration, including his transfers between facilities, are not an adequate excuse for his delay in timely serving a notice of intention or timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Plate v State of New York, 92 Misc 2d 1033 [Ct Cl 1978]). Accordingly, this factor weighs against movant.
Movant erroneously indicates that the notice of intention was to be served by September 1, 2016. The Court notes that in order for the notice of intention to have been timely and extend the time in which movant had to file and serve a claim, it must have been served within 90 days of June 2, 2016, i.e. by August 31, 2016 (Court of Claims Act § 10 [3]).
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Defendant admits that it was provided with some notice of the underlying facts of the incident and for the purposes of this motion, concedes these three factors. Thus, the factors of notice, opportunity to investigate and the lack of substantial prejudice weigh in favor of movant.
Affirmation of Assistant Attorney General (AAG) Mark Sweeney, dated Apr. 19, 2018, in Opposition to Motion, ¶ 11. --------
Another factor to be considered is whether movant has any other available remedy. Movant is seeking damages for personal injuries allegedly received when he was assaulted by a fellow inmate while in custody at a State correctional facility. However, as defendant aptly notes, movant could have brought a direct action against his attacker. Thus, this factor weighs against movant.
The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In order to establish a meritorious claim, a movant must demonstrate that the proposed claim is not patently groundless, frivolous, or legally defective, and that there is reasonable cause to believe that a valid claim exists (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199, 202-203 [Ct Cl 1992]).
It is well-settled that the State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates (Blake v State of New York, 259 AD2d 878 [3d Dept 1999]). Despite this obligation, however, the State is not the insurer of the safety of inmates, and the fact that an assault occurs does not give rise to the inference of negligence (Colon v State of New York, 209 AD2d 842 [3d Dept 1994]). In order to establish that the State is liable for such an assault, an inmate claimant must allege and ultimately prove that the State knew or should have known that there was a risk of harm to the claimant which was reasonably foreseeable and inadequately addressed (Sanchez v State of New York, 99 NY2d 247 [2002]; see also Flaherty v State of New York, 296 NY 342 [1947]). In other words, a claimant must prove one of the following: (1) that 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) 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 (3) that the State had ample notice and opportunity to intervene but did not act (Sanchez, 99 NY2d at 252).
In his proposed claim, movant alleges that when he was at recreation in Elmira's outside gymnasium, he was attacked by another inmate with a sharp object. Movant asserts that he was cut on the right side of his face and taken to Arnot Ogden Hospital where he received 12 stitches to close the wound. Movant states that his scar is permanent and he suffers physical and mental anguish. Movant notes that he was the victim of approximately seven previous assaults, including two at Elmira. He further indicates that his DOCCS institutional records (including disciplinary hearings) contain numerous official notations regarding the risk of safety to him and other prisoners due to these other altercations. Movant has also submitted copies of letters he wrote to DOCCS personnel between May 22, 2016 and May 28, 2016 advising them that he was in fear for his safety because several unknown inmates had been threatening him with physical harm as they walked past his cell during the prior two weeks. Movant's assertions have not been contradicted or denied in an answering affidavit by a representative of defendant with personal knowledge of the situation. Accordingly, these statements are deemed true for the purposes of this motion (247-59 W., LLC v State of New York, 27 Misc 3d 570 [Ct Cl 2010]; Nyberg, 154 Misc 2d at 202; see also Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]; Alcaido v State of New York, UID No. 2012-041-070 [Ct Cl, Milano, J., Aug. 28, 2012]). Movant's assertions support a reasonable inference that defendant may have had notice that movant was in danger of being assaulted and may not have provided him with reasonable protection. The Court finds that the proposed claim has at least the initial appearance of merit at this early stage in the proceedings. Therefore, this factor weighs in movant's favor.
Four of the six statutory factors, including the crucial factor of merit, weigh in favor of movant. Accordingly, movant's motion for late claim relief is granted. Movant shall file a claim containing the information required by Court of Claims Act § 11 (b). Movant shall file said claim and serve a copy of it upon the Attorney General within forty (40) days from the date of filing of this Decision and Order in the Office of the Clerk of the Court. The service and filing of the claim shall be pursuant to the strict requirements of the Court of Claims Act.
August 14, 2018
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims The following papers were read on movant's motion: 1) Notice of Motion filed February 23, 2018; Affidavit of Robert Lathrop, sworn to February 5, 2018, and attached exhibits. 2) Affirmation in Opposition of Mark Sweeney, AAG, dated April 19, 2018, and attached exhibits. 3) Reply Affidavit of Robert Lathrop, sworn to June 7, 2018, and attached exhibit.