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James BARTON, Movant, v. The STATE of New York, Defendant.
The following papers numbered 1-2 were read and considered by the Court on movant's application for leave to serve and file a late claim:
Notice of Motion, Attorney's Supporting Affirmation, Movant's Affidavit, Proposed Claim and Exhibits 1
State's Attorney's Affirmation in Opposition 2
The motion seeks permission to file a late claim nunc pro tunc arising out of a February 11, 2018 incident at Fishkill Correctional Facility (Fishkill), in which movant alleges to have sustained personal injuries from an assault by two incarcerated individuals. The State opposes the motion. The motion is supported by movant's attorney's affirmation, movant's affidavit, a proposed claim, a verification signed by movant's attorney, and exhibits (medical records).
As alleged in the proposed claim for negligence (Ex. A) and in movant's affidavit, on February 11, 2018, between 11:30 p.m. and 11:59 p.m., two incarcerated individuals attacked movant while he was sleeping in housing unit 1-Center at Fishkill. The attackers choked movant with a towel, pulled down his boxers and stabbed him with a pen in the right leg, buttocks, penis and anus. The correction officer on duty was present throughout the incident but she did not intervene or use her personal alarm button. After the attack was over, the same correction officer refused to let movant leave the dorm for medical treatment. Movant had to wait for six hours until the next shift change to report the incident and seek medical attention. Prior to the attack, movant informed a correction officer that he was about to be attacked. The claim also alleges it was reasonably foreseeable that movant would be attacked in light of the nature of his criminal conviction for predatory sexual assault against a minor, his prior time in protective custody, notice to the State that the individuals who attacked movant were a known risk to the safety of the general population, and notice to the State that movant was being intimidated by a correction officer who previously abused him.1
Movant attests to these and the following additional facts in his affidavit.
Before the incident on February 11, 2018, Correction Officer McAnney, who had previously sexually abused movant, asked him to have a relationship with her. The day before the incident, movant heard an incarcerated individual talking to Correction Officer McAnney about assaulting movant. A week before the incident, movant heard two incarcerated individuals talking about attacking him. Movant told a correction officer that he was in danger of being attacked, but the correction officer did not provide any assistance to him.
Following the incident, movant was treated for lacerations on the outside of his body. Movant had pain for four months until June 22, 2018, when he was admitted to Montefiore Mount Vernon Hospital for surgery related to an anal fissure. Movant had scarring in the post-anal area and left lateral area. The Office of Special Investigations (OSI) investigated the incident and found movant's complaint to be unsubstantiated.
There are no provisions in the Court of Claims Act permitting nunc pro tunc relief, and movant does not cite to a statutory provision permitting late claim relief even though this is plainly a motion under Court of Claims Act § 10 (6). Nevertheless, in opposition to the motion, the State focuses its argument by addressing the statutory requirements and factors set forth in Court of Claims Act § 10 (6). The Court will treat the instant motion as a motion under Court of Claims Act § 10 (6).
The first issue for determination upon a late claim motion is whether the motion under Court of Claims Act § 10 (6) was filed before the expiration of the applicable statute of limitations. The statute of limitations for negligence is three years (CPLR 214). The proposed claim accrued on February 11, 2018. The motion for permission to file a late claim was filed on September 9, 2021, three years, six months and twenty-six days after the expiration of the statute of limitations. This amounts to a total of 1,306 days.
However, the Court takes judicial notice that executive orders by then New York State Governor Andrew M. Cuomo tolled statutes of limitation from March 20 through November 3, 2020. “The period of the toll is excluded from the calculation of the time in which the [movant] can commence an action” (Chavez v Occidental Chem. Corp., 35 NY3d 492, 505, n 8 ; see Foy v State of New York, UID No. 2021-028-505 [Ct Cl, Sise, PJ, Feb. 16, 2021]). The amount of time covered by the original executive order and all extensions is 242 days. As noted, the number of days between when the claim accrued, February 11, 2018, and when movant filed the late claim motion on September 9, 2021, is 1,306 days. The period of the toll, 242 days, subtracted from the period of time between accrual and filing, is 1,064 days, which is thirty-one days less than three years. As such, the instant late claim motion was timely filed before the expiration of the statute of limitations.
Next, the Court is to consider, among other relevant factors, the six factors set forth in Court of Claims Act § 10 (6): (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v New York State Employees’ Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ; Matter of Martinez v State of New York, 62 AD3d 1225, 1226 [3d Dept 2009]).
For the purpose of deciding the instant motion, movant's unrefuted factual allegations are accepted as true. “Facts stated in a motion for leave to file a late claim ․ are deemed true for purpose of [the] motion, when not denied or contradicted in opposing affidavits” (Sessa v State of New York, 88 Misc 2d 454, 458 [Ct Cl 1976], affd on other grounds 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 ; see Schweickert v State of New York, 64 AD2d 1026, 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023, 1024 [4th Dept 1978]).
Turning to the first factor under Court of Claims Act § 10 (6), movant has not set forth any excuse for his failure to serve a notice of intention or a claim within 90 days after the claim accrued, or for his failure to file a motion for permission to file a late claim until after he retained counsel on April 13, 2020 (Plasse Aff., ¶ 20).2 Counsel's stated excuse for the seventeen month delay in filing the instant motion until September 9, 2021 is the Covid-19 epidemic, and that he needed time to gather supporting documents and facts. The Court finds that movant has not demonstrated a reasonable excuse for the delay; however, this is but one factor to be considered and it is not a determinative factor (see Matter of St. Paul Guardian Ins. Corp. v Pocatello Fire Dist., 90 AD3d 761 [2d Dept 2011]).
Next, the Court considers the factors of whether the State had notice of the essential facts constituting the claim and an opportunity to investigate the circumstances underlying the proposed claim, and whether the State has suffered substantial prejudice from movant's delay. The State does not assert in the opposition that it lacked notice and an opportunity to investigate, or that it suffered substantial prejudice. Moreover, a contrary position would not be supported by the record. The proposed claim and movant's affidavit establish that Fishkill correction officers had actual knowledge that movant would be attacked and then failed to intervene during the attack, movant was seen by Fishkill medical staff and treated six hours after the attack, and there was an OSI investigation. The State has not submitted an affidavit refuting movant's allegations of fact, which are deemed true by the Court on a late claim motion (see Sessa, 88 Misc 2d at 459). Thus, based on the unrefuted allegations of fact, the Court finds that movant has met the initial burden of showing that the State has not been substantially prejudiced by the delayed claim because the State had actual notice and an adequate opportunity to conduct an investigation into the incident. The State has not refuted such showing (see Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 456 ; Wolf v State of New York, 140 AD2d 692, 693 [2d Dept 1988]).
The next factor to be considered is whether the proposed claim has an appearance of merit. Whether the proposed claim has the appearance of merit is generally the most decisive factor inasmuch as “ ‘it would be futile to permit a defective claim to be filed even if the other factors ․ supported the granting of the claimant's motion’ ” (Ortiz v State of New York, 78 AD3d 1314, 1314 [3d Dept 2010], quoting Savino v State of New York, 199 AD2d 254, 255 [2d Dept 1993], affd sub nom. Donald v State of New York, 17 NY3d 389 ). In order to establish the appearance of a meritorious cause of action, movant must establish that his claim is not “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 Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11 [Ct Cl 1977]; Williams v State of New York, UID No. 2016-040-100 [Ct Cl, McCarthy, J., Nov. 16, 2016]).
Unlike a party who has timely filed a claim, a party seeking to file a late claim has the greater burden of demonstrating that the claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]; Matter of Santana, 92 Misc at 11). It is noted that a heavier burden other than a mere showing of an appearance of merit rests upon movant to prevail on the allegations at trial.
To establish liability in a claim for negligence against the State arising from an assault by one incarcerated individual of another, 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 (see Sanchez v State of New York, 99 NY2d 247, 252 ; Douglas v State of New York, UID No. 2007-028-012 [Ct Cl, Sise, P.J., May 17, 2007] [assault foreseeable where claimant was target of specific attacks and threats]).
The alleged facts, deemed true for the purpose of this motion, support the appearance of merit to the claim. Movant has established that: the State had a special duty to him; the State had notice that movant was at risk of being attacked by other incarcerated individuals and yet failed to provide him with any protection; the State had actual knowledge that movant was being attacked and could have but did not act.
Finally, movant has no other remedy at law.
Accordingly, movant's application for permission to serve and file a late claim is GRANTED. Therefore, within forty-five (45) days of the filing date of this Decision and Order, movant shall file with the office of the Clerk of the Court his claim against the State of New York, in the same form as the proposed claim submitted with the motion, and serve a copy of the proposed claim upon the Attorney General personally or by certified mail, return receipt requested. In serving and filing his claim, movant is directed to follow all of the requirements of the Court of Claims Act, including § 11-a, regarding the filing fee, and the Uniform Rules for the Court of Claims.
1. Contrary to the State's argument, the Court finds that the proposed claim meets the particularity requirements of Court of Claims Act § 11 (b).
2. Affirmation of Andrew F. Plasse, Esq.
Walter Rivera, J.
Response sent, thank you
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Decided: March 07, 2022
Court: Court of Claims of New York.
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