Opinion
# 2016-015-140 Claim No. NONE Motion No. M-88103
06-13-2016
ALEX RODRIGUEZ v. THE STATE OF NEW YORK
Alex Rodriguez, Pro Se Honorable Eric T. Schneiderman, Attorney General By: Christina Calabrese, Esquire Assistant Attorney General
Synopsis
Late claim motion arising from inmate-on-inmate assault was denied.
Case information
| UID: | 2016-015-140 |
| Claimant(s): | ALEX RODRIGUEZ |
| Claimant short name: | RODRIGUEZ |
| 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-88103 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Alex Rodriguez, Pro Se |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney General By: Christina Calabrese, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | June 13, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, proceeding pro se, seeks leave to file and serve a late claim pursuant to Court of Claims Act § 10 (6) and to proceed as a poor person pursuant to CPLR 1101 (f).
Movant alleges in the proposed claim that he was in the Big Yard at Great Meadow Correctional Facility on July 28, 2015 at 1:40 p.m. when he "was cut on the right side of the face that required numerous stitches ([a]pproximately 20) to help seal the large gash on his face" (proposed claim, ¶ 5). As for the negligence of the state, movant alleges that "the State is at fault for failing to search the Big Yard and the person who assaulted him with this dangerous instrument" (proposed claim, ¶ 6).
The first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of Section 10 requires that a motion to file a late claim be made "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." Inasmuch as the movant asserts a negligence cause of action, the three-year statute of limitations set forth in CPLR § 214 applies. Movant's application is therefore timely.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following 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."
This Court has broad discretion in deciding a motion to permit the late filing of a claim (Ledet v State of New York, 207 AD2d 965 [4 Dept 1994]). The statutory factors are not exhaustive nor is any one factor controlling (Lange v State of New York, 133 AD3d 1250 [4 Dept 2015]; Matter of Gavigan v State of New York, 176 AD2d 1117 [3d Dept 1991]). The most important factor is whether the potential claim has merit, as it would be a futile exercise to permit litigation of a clearly baseless lawsuit (Ortiz v State of New York, 78 AD3d 1314 [3d Dept 2010], affd sub nom Donald v State of New York, 17 NY3d 389 [2011]; Savino v State of New York, 199 AD2d 254 [2d Dept 1993]).
Movant's excuses for failing to timely serve and file a claim are that he was ignorant of the law and unable to confer with counsel and that he has a severe mental health disability which limits his ability to read and write and requires the assistance of workers in the prison library. None of these excuses are adequate. Ignorance of the law is not an acceptable explanation for the failure to timely serve and file a claim (Matter of Sandin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]) and while a limited ability to read and write may constitute an acceptable excuse, movant failed to elaborate on the nature of his mental disability or submit medical evidence demonstrating any such disability may have hindered his ability to commence a timely action in the Court of Claims. These factors weigh against movant.
The intertwined issues of notice, opportunity to investigate and prejudice to the State will be considered together. Movant indicates that employees of the Department of Corrections and Community Supervision (DOCCS) were present on the scene, performed an investigation and facilitated the rendition of emergency medical treatment. Unfortunately, movant again failed to provide any memoranda or record establishing the fact that DOCCS had notice of the essential facts giving rise to the claim and an opportunity to investigate. However, in light of movant's assertions the correctional personnel were present and investigated the attack, and the likelihood that records of the investigation and its conclusions exist and are available, the Court finds movant has made an adequate showing that the State had notice of the event and an opportunity to investigate the facts which underlie it. Respondent failed to demonstrate that it will suffer prejudice should late claim relief be granted.
With respect to the required showing of merit, a claim is sufficiently established where the claimant demonstrates that the proposed claim is not patently groundless, frivolous, or legally defective and there is reasonable cause to believe that a valid cause of action exists (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl, 1977]; Fowx v State of New York, 12 Misc 3d 1184 [A] [Ct Cl, 2006]).
As stated by the Court of Appeals in Sanchez v State of New York (99 NY2d 247, 252 [2002]):
"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" (see also Flaherty v State of New York, 296 NY 342 [1947]).
This duty does not require "unremitting surveillance in all circumstances," nor does it cast the State in the role of an insurer of inmate safety (Sanchez v State of New York, 99 NY2d at 256). Rather, the scope of the duty is limited to risks of harm that are reasonably foreseeable, which include not only what the defendant knew but what it 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 v State of New York, 99 NY2d at 254; see also Vasquez v State of New York, 68 AD3d 1275 [3d Dept 2009]; Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). Thus, liability may arise from what the State knew or should have known regarding: (1) the risk of harm to a class of inmates which included the victim (Sanchez, at 254), (2) the dangerous propensities of the assailant (Blake v State of New York, 259 AD2d 878 [3d Dept 1999]; Littlejohn v State of New York, 218 AD2d 833 [3d Dept 1995]), or (3) the risk of an assault and the failure to prevent it despite an opportunity to do so (Huertas v State of New York, 84 AD2d 650 [3d Dept 1981]; see also see Sandlin v State of New York, 294 AD2d 723, 725 [3d Dept 2002]; Auger v State of New York, 263 AD2d 929 [3d Dept 1999]; Evans v State of New York, 11 Misc 3d 1065 [A] [Ct Cl 2006]).
Here, the proposed claim fails to allege any one of the above grounds in support of his negligence claim and the mere occurrence of an unforeseeable assault by another inmate, without more, provides no basis for the imposition of liability on the State. Accordingly, claimant did not meet even the low threshold necessary to establish the potential merit of the claim. As to the final factor to be considered, it does not appear that any alternative relief is available to afford redress for movant's injuries.
The Court finds that movant has failed to adequately set forth both the facts underlying his proposed claim and the manner in which the State was allegedly negligent. Given this determination, movant's motion for late claim relief is denied. The motion to proceed as a poor person is denied as academic.
June 13, 2016
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims The Court considered the following papers:
1. Notice of motion dated February 18, 2016;
2. Affidavit of Alex Rodriguez sworn to February 18, 2016 with exhibits;
3. Affirmation of Christina Calabrese dated March 9, 2016.