Opinion
# 2015-041-011 Claim No. NONE Motion No. M-85855
02-10-2015
JOSE SALAS v. THE STATE OF NEW YORK
LAW OFFICES OF ELMER ROBERT KEACH III, P.C. By: Elmer Robert Keach III, Esq. HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Anthony Rotondi, Esq. Assistant Attorney General
Synopsis
Application to file late claim alleging that defendant's correction officers negligently caused inmate/claimant to suffer permanent injury to hands and fingers from frostbite as a result of prolonged unprotected exposure to cold during inmate frisk is granted as allegations provide cause to believe that a meritorious claim may exist and the defendant has not been substantially prejudiced by delay in prosecuting the claim.
Case information
| UID: | 2015-041-011 |
| Claimant(s): | JOSE SALAS |
| Claimant short name: | SALAS |
| 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-85855 |
| Cross-motion number(s): | |
| Judge: | FRANK P. MILANO |
| Claimant's attorney: | LAW OFFICES OF ELMER ROBERT KEACH III, P.C. By: Elmer Robert Keach III, Esq. |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN New York State Attorney General By: Anthony Rotondi, Esq. Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 10, 2015 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant 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 February 7, 2013 an inmate at Bare Hill Correctional Facility (Bare Hill) was attacked in the vicinity of the Bare Hill Mess Hall by a fellow inmate. A Bare Hill correction officer, in an attempt to gather information about the inmate-on-inmate assault, directed claimant and a group of fellow inmates to leave the mess hall area and to line up near an outdoor fence. The inmates, including claimant, were allegedly ordered to "remove their hats, scarves and gloves, and place their bare hands against a metal fence. It was approximately zero degrees Fahrenheit on February 7, 2013, and inmates, including [claimant], were required to stand with their bare hands on a freezing fence for approximately 30 minutes . . . [d]espite repeated complaints of pain."
Bare Hill documents submitted with claimant's motion papers assert that the Bare Hill correction officers were performing a "frisk . . . in an attempt to locate the individual that assaulted" the inmate in the mess hall. The proposed claim alleges that claimant suffered severe frostbite to his hands and fingers and "will likely have permanent loss of function in both hands." The claim states that the claimant's injuries were "caused solely by the negligent actions" of defendant, in addition to alleging violation of claimant's federal civil rights.
The cause of action arose on February 7, 2013 and was required to be filed and served on or about May 8, 2013. The application to file a late claim was made on October 21, 2014.
Court of Claims Act § 10 (6) provides that the Court, upon application and in its discretion, may permit the late filing and service of a claim "at any time 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."
The proposed claim alleges a cause of action sounding in negligence. CPLR § 214 provides a three-year period to commence such an action and the application is not time-barred by CPLR Article 2.
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 v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 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]).
Claimant's primary excuse for allegedly failing to timely file and serve a claim amounts to ignorance of the law and does not constitute a reasonable excuse for untimely filing and service (Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002]).
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, 55 NY2d at 980-981).
With respect to defendant's notice of the incident, and its opportunity to investigate its potential liability, the papers supporting the application show that defendant was immediately made aware of the facts underlying the claim. The record shows that claimant, and several fellow inmates, sought immediate medical treatment for frostbite and, more significantly, several inmates filed grievances about the incident and these grievances were quickly investigated by defendant. In addition, claimant correctly notes that defendant received allegedly timely filed and served claims arising from the incident from three (3) of claimant's fellow inmates.
The Court finds that defendant had ample opportunity to, and did, timely investigate the circumstances underlying the proposed claim. In sum, the "delay [in filing] was minimal and the respondent was not prejudiced thereby" (Matter of Hughes v State of New York, 25 AD3d 800 [2d Dept 2006]).
Although claimant may arguably have an alternative remedy in U.S. District Court for purported federal constitutional violations, claimant plausibly argues that the standard of proof in such a federal action (at least insofar as the defendant's actions constituted deliberate indifference to claimant's complaints of pain from the cold) may be higher than that imposed in a simple negligence action in state court.
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, 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]). In Witko v State of New York (212 AD2d 889, 891 [3d Dept 1995]), the court noted that a proposed claim offered in a section 10 (6) application need only have "the appearance of merit."
Claimant, and similarly situated inmates, are subject to the custody and control of the State of New York while incarcerated and defendant is charged with a duty of reasonable care and supervision while exercising its power of custody and control.
Specifically, the State owes "'a duty to use reasonable care to protect its inmates from foreseeable risks of harm'" (Leibach v State of New York, 215 AD2d 978, 979 [3d Dept 1995], quoting Colon v State of New York, 209 AD2d 842, 843 [3d Dept 1994]).
However, "[t]his does not mean that the State is thereby an insurer of inmate safety, and negligence will not be inferred from the mere occurrence of an accident" (Melendez v State of New York, 283 AD2d 729 [3d Dept 2001]).
Defendant has not offered admissible factual opposition to the allegations of the proposed claim and the allegations of the late claim application and those 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 Court finds that the allegations of the proposed claim, in particular that defendant caused claimant to endure prolonged unprotected exposure in frigid conditions, while grasping a metal fence during the inmate frisk, set forth the elements of an action for negligence that proximately caused the injuries and damages sustained by claimant.
Based upon a balancing of the factors set forth in section 10 (6), the Court grants the motion and claimant is directed to file and serve the claim 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.
February 10, 2015
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
Papers Considered:
1. Claimant's Notice of Motion For Leave to File a Late Claim, filed October 22, 2014;
2. Affirmation of Elmer Robert Keach, III, dated July 26, 2014, and annexed exhibits, including proposed claim;
3. Affidavit of Jose Salas, sworn to July 26, 2014;
4. Affidavit of Anthony Rotondi, sworn to November 18, 2014.