Opinion
# 2016-044-550 Claim No. None Motion No. M-88710
07-28-2016
JAMES WILSON v. THE STATE OF NEW YORK
JAMES WILSON, pro se HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General
Synopsis
Inmate's late claim motion for inmate-on-inmate assault granted.
Case information
| UID: | 2016-044-550 |
| Claimant(s): | JAMES WILSON |
| Claimant short name: | WILSON |
| 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-88710 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | JAMES WILSON, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL BY: Douglas H. Squire, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | July 28, 2016 |
| 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." Movant seeks to recover for personal injuries allegedly received when, while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility (Elmira), he was struck from behind and suffered a broken jaw. 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 movant might seek permission to file a late notice of intention. The Court will therefore treat claimant's motion as one to file and serve a late claim and will conduct the appropriate analysis under Court of Claims Act § 10 (6). Claimant's proposed "Late Notice of Intention" attached to his affidavit in support of this motion will be treated and referred to as the proposed claim.
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 on January 3, 2016 he was struck from behind, presumably by another inmate, while standing in line in the fieldhouse waiting for "go back." The applicable statute of limitations for a cause of action alleging negligence is three years (CPLR 214 [5]). Accordingly, this motion mailed on April 29, 2016 is timely (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]).
Proposed Claim at 1.
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 argues that during the period from January 3, 2016 (the date of the assault) through April 27, 2016, he had been in the hospital, placed on restrictive confinement, transferred and placed under psychiatric treatment. Claimant's lack of access to legal assistance or legal research materials because of his incarceration or indigence is 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]). Moreover, claimant has failed to provide any medical evidence that he was mentally or physically incapacitated to such a degree that he could not timely serve a notice of intention to file a claim or to timely file or serve a claim (see generally Matter of Isereau v Brushton-Moira School Dist., 6 AD3d 1004 [3d Dept 2004]; Elting v State of New York, 8 AD2d 640 [3d Dept 1959]). Accordingly, this factor weighs against claimant.
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. Movant does not address these factors other than to conclusorily state that there is no prejudice to defendant. 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) Douglas H. Squire, dated July 6, 2016, in Opposition to Motion, ¶ 8.
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. Defendant concedes that the Court of Claims is the proper forum for this action. This factor also weighs in favor of movant.
Id., ¶ 9.
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 [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 in Elmira's fieldhouse waiting in line to go back from recreation, he was struck from behind and suffered a broken jaw. He indicates that prior to the incident, he had informed Correction Sergeant Nilie and Counselor A. Savino that he was going to be assaulted. Claimant states that both the Sergeant and the Counselor laughed at him and allegedly stated that claimant's last two assaults were good for him. Claimant asserts that "this is a[n] ongoing thing for years that could and should of [sic] been prevented." Movant alleges that DOCCS officials and employees were aware that he was in danger of being assaulted, but took no precautions to insure his safety. His assertion has 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. 8, 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, particularly in light of the employees' comments that his prior assaults were good for him. The Court finds that the proposed claim has at least the initial appearance of merit at this stage in the proceedings. Therefore, this factor weighs in movant's favor.
Proposed Claim at 1. --------
Five 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.
July 28, 2016
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 on May 25, 2016; Affidavit of James Wilson, sworn to on April 29, 2016, and attachments. 2) Affirmation in Opposition of Douglas H. Squire, AAG, dated July 6, 2016.