Opinion
# 2016-040-042 Claim No. NONE Motion No. M-88158
06-09-2016
SHAMAR SMITH v. THE STATE OF NEW YORK
Shamar Smith, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joan Matalavage, Esq., AAG
Synopsis
Motion to file a Claim late pursuant to CCA § 10(6) denied. Lack of appearance of merit.
Case information
| UID: | 2016-040-042 |
| Claimant(s): | SHAMAR SMITH |
| Claimant short name: | SMITH |
| 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-88158 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Shamar Smith, Pro Se |
|---|---|
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Joan Matalavage, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | June 9, 2016 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the application of pro se Movant, Shamar Smith, to serve and file a late claim pursuant to Court of Claims Act § 10(6) is denied.
Attached to Movant's affidavit is a copy of his proposed Claim. The proposed Claim alleges that, on March 26, 2015 at Greene Correctional Facility (hereinafter, "Greene"), as he was returning from his evening meal, he was on the porch area of the M-1 housing unit and was slashed from behind by an unknown person (proposed Claim, ¶¶ 7, 8). Movant went into the housing unit to get a towel and notify an officer about the attack (id., ¶¶ 9, 10). While Movant was talking to the officer, he was again assaulted by "another inmate" (id., ¶ 11). Movant alleges that the State was negligent in failing to protect him and keep him safe from assault by other inmates (id., ¶ 3).
Pursuant to Court of Claims Act § 10(6), it is within the Court's discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed Claim asserts a cause of action for negligence (CPLR § 214[5], a three-year Statute of Limitations). Movant asserts that the claim accrued on March 26, 2015. The Court concludes that, based upon the information provided in the proposed Claim, the statute of limitations had not yet expired.
Next, in determining whether to grant a motion to file a late claim, Court of Claims Act § 10(6) sets forth six factors that should be considered, although other factors deemed relevant also may be taken into account (Plate v State of New York, 92 Misc 2d 1033, 1036 [Ct Cl 1978]). Movant need not satisfy every statutory element (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]). However, the burden rests with Movant to persuade the Court to grant his or her late claim motion (see Matter of Flannery v State of New York, 91 Misc 2d 797 [Ct Cl 1977]; Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]).
The first factor to be considered is whether the delay in filing the claim was excusable. Movant asserts that he did not timely serve and file a claim because he was unable to confer with counsel and lacked access to the prison law library because of illness caused by the incident. Neither ignorance of the law nor confinement to a correctional facility is an acceptable excuse for failure to file a timely claim (Matter of Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006], Matter of Sandlin v State of New York, 294 AD2d 723, 724 [3d Dept 2002], lv denied 99 NY2d 589 [2003]). The excuse for failing to timely file must relate to the initial 90-day period (see Bloom v State of New York, 5 AD2d 930 [3d Dept 1958]). Here, the 90-day period expired June 24, 2015. However, Movant has submitted neither a physician's affidavit nor hospital records to establish the length of time of his alleged incapacity (Cabral v State of New York, 149 AD2d 453 [2d Dept 1989]; Goldstein v State of New York, 75 AD2d 613 [2d Dept 1980]; Rios v State of New York, 67 AD2d 744 [3d Dept 1979]). There is no indication why he could not contact counsel and serve a notice of intention to file a claim prior to expiration of the statutory period. However, 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 v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., supra at 981).
The next three factors to be addressed - whether Defendant had notice of the essential facts constituting the claim, whether Defendant had an opportunity to investigate the circumstances underlying the claim, and whether the failure to file or serve a timely claim or to serve a notice of intention resulted in substantial prejudice to Defendant - are interrelated and will be considered together. Defendant does not argue lack of notice of the essential facts, lack of opportunity to investigate, or that it will be substantially prejudiced by a delay in filing a claim (see Affidavit in Opposition of Joan Matalavage, Esq.). Those factors, therefore, weigh in Movant's favor.
The fifth factor to be considered is whether Movant has another remedy available. It appears that Movant does have a possible alternate remedy against the alleged assailants.
The sixth, final and perhaps most important factor to be considered is whether the proposed claim has the appearance of merit, for it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], lv granted 16 NY3d 703 [2011], affd sub nom. Donald v State of New York, 17 NY3d 389 [2011], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993]). It is Movant's burden to show that the claim is not patently groundless, frivolous or legally defective, and, based upon the entire record, including the proposed claim and any affidavits, that there is reasonable cause to believe that a valid cause of action exists. While this standard clearly places a heavier burden upon a party who has filed late than upon one whose claim is timely, it does not, and should not, require Movant to establish definitively the merit of the claim, or overcome all legal objections thereto, before the Court will permit Movant to file a late claim (Matter of Santana v New York State Thruway Auth., supra at 11-12).
"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" (Sanchez v State of New York, 99 NY2d 247, 252 [2002]; see Flaherty v State of New York, 296 NY 342, 346 [1947]; Di Donato v State of New York, 25 AD3d 944 [3d Dept 2006]). As in any other negligence action, "the scope of the duty owed by the defendant is defined by the risk of harm reasonably to be perceived" (Sanchez v State of New York, supra at 252; see Basso v Miller, 40 NY2d 233, 241 [1976]; Smith v County of Albany, 12 AD3d 912, 913 [3d Dept 2004]). Even though the "precise manner in which the harm occurred" may not have been foreseeable, liability attaches if it was "within the class of reasonably foreseeable hazards" to which the duty applies (Sanchez v State of New York, supra at 252; Rodriguez v City of New York, 38 AD3d 349, 352 [1st Dept 2007]). Moreover, it applies to those risks that were foreseeable, "not simply by actual notice but by actual or constructive notice - by what the 'State knew or had reason to know' " (Sanchez v State of New York, supra at 255, quoting dissenting op at 260 [emphasis in original]). In the instant Claim, it encompasses those risks that Defendant reasonably should have foreseen in the context of its operation of a prison and having custody of inmates forcibly surrounded by felons - many of them with a proven capacity for violence (Sanchez v State of New York, supra at 256). Defendant's duty to prisoners does not "mandate unremitting surveillance in all circumstances, and does not render the State an insurer of inmate safety. When persons with dangerous criminal propensities are held in close quarters, inevitably there will be some risk of unpreventable assault, a risk the State cannot possibly eradicate. The mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (Sanchez v State of New York, supra at 256; Elnandes v State of New York, 11 AD3d 828 [3d Dept 2004]).
To demonstrate a meritorious claim for late claim purposes, a movant must assert in his or her proposed claim or supporting papers some facts or evidence establishing that the attack was foreseeable because: (1) Defendant knew, or should have known, that the claimant was at risk of assault, yet failed to provide reasonable protection; (2) Defendant knew, or should have known, that the assailant was prone to perpetrate an attack, yet failed to take proper precautionary measures; or (3) Defendant failed to intervene or act when it knew, or should have known, that surrounding conditions were likely to engender or facilitate an attack (Sanchez v State of New York, supra at 252, 255; Matter of Sandlin v State of New York, supra at 725; Smith v State of New York, 284 AD2d 741, 742 [3d Dept 2001]; Smart v State of New York, UID No. 2007-029-053 [Ct Cl, Mignano, J., Dec. 21, 2007], affd 65 AD3d 1218 [2d Dept 2009]; Douglas v State of New York, UID No. 2007-028-012 [Ct Cl, Sise, P.J., May 17, 2007]).
Here, the proposed Claim fails to set forth any facts to support the allegation that Movant was at risk of attack at Greene; that his assailant was known to be dangerous; or that the attack was otherwise reasonably foreseeable. Other than the fact that Movant was injured and treated for his injury, the proposed Claim fails to set forth facts to support the conclusory statement that the State was negligent and to establish a meritorious claim (Matter of Sandlin v State of New York, supra).
The Court concludes, based upon the entire record, that Movant has failed to establish that the claim is not patently groundless, frivolous or legally defective and that a valid cause of action for improper supervision exists. Thus, the Court finds that the proposed Claim lacks the appearance of merit.
Because it would be futile to permit a defective claim to be filed, subject to dismissal, even if other factors tended to favor the request, Movant's motion is denied.
June 9, 2016
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims The following papers were read and considered on Movant's request for permission to serve and file a late claim pursuant to Court of Claims Act § 10(6): Papers Numbered Notice of Motion, Affidavit & Exhibits attached 1 Affidavit in Opposition & Exhibits attached 2