Patricio Nunez Claimant, v. The State of New York, Defendant. (2026)

Introduction

Claimant, Patricio Nunez, who is in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), filed a claim against the State of New York for its failure to protect him from an assault that occurred on June 26, 2022, at Sing Sing Correctional Facility ("Sing Sing"). The claim alleged that Mr. Nunez was cut multiple times from behind on his face, neck, and back, which required 34 stitches and 14 staples. The claim asserted that the State was responsible for not preventing the attack because it did not take any steps to respond to claimant's oral and written communications notifying DOCCS employees that he was in imminent danger.

The claim alleged that he had orally reported tensions with other incarcerated individuals to his gallery officer. He followed that communication with a February 21, 2022, written communication to the superintendent apprising him of the tensions and asking that officers "be more alert" or that he be moved "the next chance you get." Claimant again spoke to his gallery officer about escalating tensions with Bloods gang members on the gallery. According to a subsequent written communication to the superintendent dated May 14, 2022, when claimant attempted again to notify gallery officers because he "was pretty worried for [his] safety" about what he now described as "extreme tension" with other incarcerated individuals and "crazy threats" made against him, gallery officers "told him to 'grow-up, be a man, go fight!' " and "made fun of him," laughed, and walked away. In that same letter, claimant begged to be moved from the gallery, stating "[I']m feeling scared now." Claimant alleged he received no response from DOCCS to his letters. He asserts that DOCCS' "neglectful and degrading treatment" violated Correction Law § 137 (5). Claimant seeks $100,000 in damages for pain and suffering.

Prior Motion Practice

Claimant filed the claim with the Clerk of the Court on March 6, 2023. Attached to the claim as exhibit E was a copy of claimant's verified notice of intention to file a claim, served on the Office of the Attorney General ("OAG") on August 12, 2022. On March 29, 2023, the State moved to dismiss the claim (M-99262) on two grounds. First, the State argued, the claim was not properly served because it had been served by regular mail. (Keogh affirmation [M-99262] ¶ 8.) Second, the State argued, the notice of intention to file a claim was defective because it failed to specify the date when the claim accrued as required by Court of Claims Act 11 (b). (Id. ¶¶ 11-12.) Although defendant referenced a defective notice of intention to file a claim and indicated that it was attached as exhibit C (id. ¶ 11), the Court did not receive an exhibit "C" as a part of the State's moving papers, and the State did not identify an exhibit "C" in its fax cover letter to the Court setting forth what was transmitted. (Id. at 73.¹ ) However, included with the State's motion papers was a copy of the claim and its attachments that had been received by the OAG, which included an identical copy of the notice of intention to file a claim that had been filed as an attachment to the claim with the Clerk of the Court. (State's exhibit A [M-99262].)

In opposition to the State's motion, Mr. Nunez informed the Court that he had now timely re-served the claim by certified mail, return receipt requested. (Claimant's letter [M-99262] dated Apr. 3, 2023 and filed Apr. 7, 2023.) Claimant also argued that his notice of intention to file a claim included the date the incident accrued and attached an identical copy of the notice of intention that had been attached to the State's motion papers and attached to the claim filed with the Court, that clearly included the date the alleged incident arose. (Id.; see also claimant's exhibit 1 at 48.) The State did not reply.

The Court found that the notice of intention was not defective because it included the date the incident accrued and therefore secured jurisdiction of this Court. (See Nunez v State of New York, UID No. 2023-069-007 [Ct Cl, Marnin, J., Sept. 12, 2023].)² As to the service of the claim, because the claimant's answering papers were in the form of an unsworn letter, the Court adjourned the motion to allow the claimant to provide a properly completed affidavit of service and evidence that the claim was sent by certified mail, return receipt requested and to allow the State to withdraw the undecided portion of the motion if the claim had been properly served.

By correspondence to the Court dated November 8, 2023, the State through Assistant Attorney General ("AAG") Keogh confirmed that the Attorney General had been properly served by certified mail, return receipt requested. The State did not, at that time, file a motion to renew or reargue any portion of the motion under CPLR 2221 or appeal the decision but instead withdrew the motion and requested 30 days to answer the claim.³

The State finally answered the claim on January 2, 2024, 55 days after her request for 30 days to file.⁴ (State's exhibit A.) The answer asserted eleven affirmative defenses. The eleventh affirmative defense asserted that "[t]his Court lacks subject matter jurisdiction over the claim and personal jurisdiction over the defendant, the State of New York, as the claim was not served upon the Office of the Attorney General within ninety days of accrual. Therefore, the Court lacks jurisdiction as the claim is untimely." (Id. ¶ 14.)

Defendant's Pending Motion to Dismiss

A trial in this matter was set for April 15, 2026. As is this Court's regular practice, to ensure that the Court and the parties timely receive and have the opportunity to review evidence to be offered at trial, on March 6, 2026, the Court wrote to the parties and ordered the State  ⁵ to, among other things, "upload in PDF format to Virtual Evidence Courtroom 2 (VEC2) and send to Claimant by mail documents the Defendant intends to offer into evidence" at least "two weeks before the trial" [emphasis in original], or April 1, 2026.

At 12:07 p.m. on April 14, 2026, the day before trial was scheduled to commence, the State sought permission from the Court to add into evidence a stamped copy of the notice of intention that had been served on the Attorney General, stating that it had been previously provided to the claimant "as part of motion practice." This version, unlike the only one included with the State's motion to dismiss the claim, did not include a date the claim accrued. The Court indicated that its admission into evidence could be addressed on the record at trial the following day.

As trial commenced but before any testimony was offered, the State again moved to dismiss the claim. It argued that, because notice of intention did not comply with Court of Claims Act § 11 (b), it did not extend the time within which claimant had to file his claim, ultimately making the claim untimely, and depriving the Court of jurisdiction. Moreover, the State asserted that it timely raised in its answer an affirmative defense that the claim was untimely.

The State concedes that the undated version of the notice of intention was "inadvertently" omitted from the previous motion to dismiss (M-99262). Defendant takes the position that because the Court's decision on that motion only addressed the version of the notice of intention that was filed with the claim and not the version served on the defendant, the timeliness of the claim was not addressed in the decision. Therefore, the State argues, the Court did not deny the defendant's motion but rather allowed claimant to prove that he properly served the claim, which he did, and the defendant withdrew the motion. Because the requirements of Court of Claims Act must be strictly construed and the notice of intention to file a claim that was served on the Attorney General was defective, the State concludes, it did not extend the time to file the claim, the claim was untimely filed and served, and the Court is therefore without jurisdiction over the claim.

Claimant opposed the motion, arguing that this issue had already been decided in the State's previous motion making, essentially, a law of the case argument. The Court reserved judgment.⁶ Since the resolution of this motion could be dispositive and render the remainder of the decision moot, the Court will address it before turning to findings of fact.

It is well established that the State's waiver of its sovereign immunity is conditioned on claimant's satisfaction of the legislatively mandated pleading requirements set out in the Court of Claims Act § 11 (b). Both a notice of intention to file a claim and a claim must sufficiently set forth the time when and the place where the claim arose and the nature of the claim. (Court of Claims Act § 11 [b]; see also Santana v State of New York, 81 Misc 3d 1237[A] [Ct Cl 2023].) The only distinction Court of Claims Act § 11 (b) makes between the requirements for a notice of intention and a claim is that a notice of intention need not state "the items of damage or injuries and the sum claimed need not be stated." (See also Sacher v State of New York, 211 AD3d 867, 870 [2d Dept 2022] [there is no statutory basis for treating the substantive requirements of a notice of intention and a claim differently].) The New York State Court of Appeals recently reiterated that the substantive pleading requirements of Court of Claims Act § 11 (b) are to be strictly construed. (Wright v State of New York, 43 NY3d 532, 538 [2025].) The State waives its immunity if, and only if, a claimant meets the strict pleading requirements of the Court of Claims Act.

There is no dispute here that, when the State first moved to dismiss the claim and argued that the notice of intention did not satisfy the pleading requirements of Court of Claims Act § 11 (b) and therefore did not extend the time for claimant to file his claim, it did not attach the version of the notice of intention that claimant served on it. Nor did the State reply to claimant's opposition to the motion to dismiss. There can also be no dispute that the decision this Court issued clearly stated that the notice of intention included with the motion papers identified the date the claim arose and that, "[o]n its face, claimant's notice of intention satisfies the statutory requirements set forth in Court of Claims Act § 11 (b)[.]" (See Nunez, UID No. 2023-069-007.) The decision further explained that claimant's time to file and properly serve the claim had not yet expired. The State neither appealed the decision nor moved for leave to renew at that time.⁷ Rather, the State withdrew the motion.

The Court need not address the State's argument that this Court's decision did not address the timeliness of the claim since it withdrew the motion to dismiss. When a motion is withdrawn, it "leave[s] the record as it stood prior to its filing as though it had not been made[.]" (Stoute v City of New York, 91 AD2d 1043, 1044 [2d Dept 1983][emphasis in original].)

This, however, leaves the State with a different problem. Section 206.7 of the Uniform Rules for the Court of Claims requires the defendant to file and serve an answer within 40 days of service of the claim. Claimant's original claim was served on March 8, 2023, and his unsworn opposition to the motion, received on April 7, 2023, indicated that he served the State by certified mail return receipt on April 3, 2023, acknowledging that the claim had not previously been served properly. Because the opposition was unsworn, the Court asked for evidence of service and provided the State an opportunity to withdraw its motion if claimant timely served the claim in compliance with Court of Claims Act § 10.

Although it appears that the claim was served well before the State wrote to the Court on November 8, 2023, withdrawing the motion and requesting 30 days to answer the claim, solely for the purposes of this motion and in the interest of judicial economy, the Court will use that date to determine the timeliness of the State's answer. Had the State served its answer within the requested 30 days, it should have been filed and served no later than December 8, 2023. Even using the more generous 40 days provided for in Section 206.7 of the Uniform Rules for the Court of Claims, since it is as if the motion had not been made, that would take defendant to December 18, 2023. However, the State did not answer the claim until January 2, 2024.

The timeliness of the State's answer matters here because it determines whether or not it has waived its affirmative defense as to the timeliness of the claim. Court of Claims Act § 10 (c) provides, in relevant part that "[a]ny objection or defense based upon failure to comply with (i) the time limitations contained in section ten of this act is waived unless raised, with particularity, either by motion to dismiss before service of the responsive pleading is required or in the responsive pleading, and if so waived the court shall not dismiss the claim for such failure." (See also Harris v State of New York, 190 Misc 2d 463 [Ct Cl 2002] [affirmative defense subject to section 11 (c) is waived unless raised within 40-day period for serving timely answer].) It is evident, therefore, that even using the latest date of November 8, 2023,⁸ and allowing the State the full 40 days provided by the Uniform Rules for the Court of Claims, defendant did not file its answer by the December 18, 2023 deadline. Thus, the answer was not timely filed and the affirmative defense was not timely raised. Therefore, the State has waived its affirmative defense concerning the timeliness of the claim. Although defendant strenuously argued that the notice of intention to file a claim did not meet the pleading requirements of Court of Claims Act § 11 (b), it makes no such arguments concerning the claim. The State only argues that the claim was not timely filed within 90 days of accrual. Since the timeliness defense has been waived because it was not timely raised, the State's motion to dismiss the claim is denied.

The Trial

Mr. Nunez, appearing pro se, testified on his own behalf and called no witnesses. He offered only one exhibit: the verified claim with its attached exhibits (including the two letters sent to the superintendent, and medical records from DOCCS, Westchester Medical Center, and BioReference Laboratories). Defendant called no witnesses and offered two exhibits: (A) its verified answer, and (B) a collection of documents (including incident and injury reports, to/from memos, claimant's FPMS records, and an IPC recommendation, among others). The above exhibits were entered into evidence on consent of both parties.

Relevant Evidence and Findings of Fact  ⁹

Claimant first arrived at Sing Sing in December 2021. During his initial days there, he believed Sing Sing was a "good jail" because he was able to easily participate in classes and attend chow. While acclimating to the block, claimant testified that he perceived tension near his cell and noticed the presence of individuals he believed to be Bloods gang members.

Within one to two weeks of arrival, unidentified individuals began stopping at claimant's cell door asking if he was a Latin King and stating, "We know you are a Latin King—come out of your cell." Claimant could not identify these individuals by name and testified he did not know who they were. The next day, while claimant was lifting weights in the yard, three men held the barbell down on his chest, threatened him, and again accused him of being a Latin King. Claimant testified he did not know the men, had not seen them before, and did not see them again thereafter. He does not recall which correction officer was on duty in the yard and did not report that incident to that officer.

Claimant called his mother, who encouraged him to write to the Superintendent to seek removal from the jail or a move from his cell. He did so and a copy of that letter was attached to the claim and admitted into evidence. The letter, the first of two, was written by claimant to the Superintendent on February 21, 2022. (See claimant's exhibit 1 at 44.) In the letter, Mr. Nunez wrote that he had started experiencing tension from others in the Lima gallery, whom he identified as members of the Bloods gang. In the letter, he indicated that he had already spoken to his gallery officer and that the gallery officer advised Mr. Nunez to talk to a sergeant or write to the Superintendent. He asked the Superintendent to tell officers to be more alert on his gallery or "just simply move [him] the next chance [he] get[s]." Claimant testified that he never received a response to this letter.

Claimant testified that he later informed another correction officer in the gallery that he did not feel safe and asked again to be moved. He testified that the officer gave him a weird look, did not ask any questions, and took no action.

On May 14, 2022, after a second call with his mother who, according to claimant's testimony, also contacted the facility about the threats, claimant wrote a second letter to the Superintendent. The letter, attached to the claim and admitted into evidence, described "extreme tension" with the Bloods gang. (Id. at 46.) He wrote that he was "starting to get crazy threats" because members of the Bloods think he is a Latin King, which he denied. The letter also recounted that he again spoke to his gallery officer, but that he "just turned his back, laughed and walked downstairs." (Id.) He described being scared and worried for his safety and implored the Superintendent to "[p]lease get [him] off this gallery[.]" He testified that he again received no response to this letter.

Claimant testified that he made copies of his letters using carbon paper and placed them in the facility's general mail slot where all internal and outgoing mail is placed. Claimant testified that internal facility mail does not require postage.

Approximately three to four days before he was assaulted, he had again asked a correction officer for help regarding his safety. He testified that again no action was taken. Claimant did not file a formal grievance, asserting the grievance process takes two to three weeks and he believed the threat was imminent. Claimant testified that the statements directed at him were not normal in his experience of being incarcerated and that he did not provoke any incident.

Mr. Nunez testified that, on June 26, 2022, while returning from the yard and walking upstairs, claimant was grabbed from behind, his arms and sides were constricted, his head was pulled back, and his face was cut, causing excessive bleeding. The injuries required 34 stitches on the right side of his face and 14 staples on the back of his head.

Claimant described the gallery where he was assaulted as crowded, and testified that no correction officer was in sight during the assault. He testified that he looked down at the blood in shock and, upon looking up, saw that the gallery had cleared and people were inside their cells. Staff then ran toward him and he reported the incident.

When asked by a sergeant what had happened, claimant stated he did not know because the assailants disappeared quickly. He did not know who attacked him or why; he believed the assailants thought that he was affiliated with a gang. He had previously been threatened on his floor but could not identify who made the threats and, therefore, could not report specific names.

Although no testimony was offered at trial concerning the documents included in defendant's exhibit B, they corroborate and do not contradict Mr. Nunez's credible testimony that he was assaulted by other incarcerated individuals but did not see who assaulted him, was bleeding from the face and head as a result of the assault, treated at the facility and transported to the local hospital where he received 34 stitches on the right side of his face and 14 staples on the back of his head. (Claimant's exhibit 1; but c.f. defendant's exhibit B [claimant received 30 stitches and 15 staples].)

Claimant testified that he was placed in Involuntary Protective Custody ("IPC") when he returned to Sing Sing. (See also id. at 5, 14.) At the IPC hearing, claimant states he attempted to make a record that he had previously alerted the Superintendent about the tensions and threats made against him, but that the officer turned off the recording and he was not permitted to do so. Claimant testified he did not know protective custody existed prior to the assault and declined protective custody following the assault. The hearing officer recommended that Mr. Nunez be placed in IPC following the incident.

Claimant closed his case, credibly testifying to the ongoing pain and suffering he experiences as a result of the assault. His testimony described the difficulty he had looking at himself in the mirror, the embarrassment he feels related to the visible scarring, and that the attack "took a little bit of humanity and joy" from him. He expressed a need for relief and a return to normalcy.

Law and Analysis

It is well established that, "because correction officers are tasked with the formidable and critical responsibility of protecting the safety of incarcerated individuals, when that obligation is breached, the State may be directly liable for injuries suffered by an incarcerated individual if it acted negligently." (R.S. v State of New York, 231 AD3d 1376 [3d Dept 2024] [internal quotation marks and brackets omitted].) This is so because, "[h]aving assumed physical custody of [incarcerated individuals], who cannot protect and defend themselves in the same way as those at liberty can, the State owes a duty of care to safeguard [incarcerated individuals], even from attacks by fellow [incarcerated individuals]." (Sanchez v State of New York, 99 NY2d 247, 252 [2002] [citations omitted].)

However, that duty is not absolute and does not render the State an insurer of incarcerated individuals' safety. (Id. at 253.) Negligence cannot be established by the "mere occurrence of an [ ] assault" upon an incarcerated individual. (Id. at 256; see also Armwood v State of New York, 219 AD3d 970, 971 [2d Dept 2023].) Instead, the State's "duty is limited to providing reasonable care to protect [incarcerated individuals] from risks of harm that are reasonably foreseeable, i.e., those that [DOCCS] knew or should have known" (Vasquez v State of New York, 68 AD3d 1275, 1276 [3d Dept 2009] [citations omitted]; see Smart v State of New York, 65 AD3d 1218 [2d Dept 2009] [the State will be liable for an assault by another incarcerated individual only if "it failed to exercise adequate care to prevent that which was reasonably foreseeable"] [internal citations and quotations omitted]). Constructive knowledge, that the State "should have known," "includes whatever information the State reasonably should have known from its knowledge of the risks to a class of [incarcerated individuals] based on its institutional expertise, its prior experience, and its policies and practices." (McDevitt v State of New York, 197 AD3d 852, 854 [4th Dept 2021] [internal citation omitted].) This is true even where there is no specific threat. (Id.) As relevant to the facts here, "[i]t may be foreseeable for a particular [incarcerated individual] to become the victim of gang-related violence in the prisons so as to impose a greater-than-normal duty to provide protection to him or her [where there is] a specific factual basis for such a conclusion." (Douglas v State of New York, UID No. 2007-028-012 [Ct Cl, Sise, PJ., May 17, 2007].)

Mr. Nunez must prove his case by a fair preponderance of the credible evidence. (Rinaldi & Sons, Inc. v Wells Fargo Alarm Serv., 39 NY2d 191, 196 [1976].) To succeed here, Mr. Nunez therefore needed to prove by a fair preponderance of the credible evidence that the attack was reasonably foreseeable because defendant either (1) knew, or should have known, that he was at risk of assault, yet failed to provide reasonable protection; (2) knew, or should have known, that the assailant or assailants were prone to perpetrate an attack, but failed to take appropriate precautionary measures; or (3) failed to intervene or act when it knew, or should have known, that the extant conditions were likely to produce or facilitate an attack. (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]; Perez v State of New York, 83 Misc 3d 1234[A] [Ct Cl 2024].)

The Court finds that Mr. Nunez has established by a preponderance of the credible evidence, including his credible testimony concerning his reports to gallery officers about tensions and threats he received prior to the assault and his letters to the Superintendent prior to the incident about the escalating tensions on the gallery and "crazy threats" that were made against him, that the assault was foreseeable. Mr. Nunez communicated clearly that he believed that the underlying issue was that Bloods gang members believed him to be a member of the Latin Kings. The credible evidence established that defendant knew or should have known that Mr. Nunez was at risk of assault and failed to take any steps to protect him.

The State offered no testimony or evidence that contradicted Mr. Nunez's account. Although the defendant observed that Mr. Nunez was unable to name the individuals who threatened him or who assaulted him, this neither contradicts his account nor undermines his claim. If the claim alleged that the State knew or should have known that the assailant or assailants were particularly violent and that was why the assault was foreseeable, it would be germane. But that is not what was alleged here.

This claim, and the credible evidence at trial, is distinguishable from cases where courts found that fear of gang violence did not make an assault foreseeable. In Savoca v State of New York, for example, evidence provided by defendant at trial that contradicted claimant's testimony led the Court to discredit claimant's testimony and find "that claimant did not provide defendant with any information that would have or should have led defendant to reasonably believe that an attack on claimant was foreseeable." (UID No. 2003-010-037 [Ct Cl, Ruderman, J., Dec. 3, 2003].) While the Court is mindful that generalized fears of gang violence do not establish foreseeability, here Mr. Nunez described specific threats against him, explained why he believed he was being threatened, and identified the threats as coming from individuals housed on the same gallery. There was no evidence submitted at trial to discredit claimant's testimony. Claimant was not offered, nor did he refuse, protective custody prior to the assault.

The credible and uncontradicted evidence presented at trial reflects that the defendant knew or should have known that Mr. Nunez was at risk of assault and failed to take any steps to protect him. Claimant himself pleaded to be moved, but rather than evaluating the specific concerns for his safety that he raised, his requests were ignored. The Court therefore finds defendant 100% liable to claimant for his injuries.

Damages

As with liability, Mr. Nunez must prove the nature and extent of his injuries by a fair preponderance of the credible evidence. There are generally three different kinds of damages in cases like Mr. Nunez's: physical and mental pain and suffering, loss of earnings, and medical expenses. (Record v Royal Globe Ins. Co., 83 AD2d 154, 160 [2d Dept 1981].) Mr. Nunez's testimony concerned only physical and mental pain and suffering.

Determining pain and suffering is a factual inquiry that depends on the specifics in each case. (Leto v Amrex Chem. Co. Inc., 85 AD3d 1509 [3d Dept 2011].) "[A]n award for pain and suffering is inherently a subjective inquiry, not subject to precise quantification, and generally presents a question of fact." (Petrilli v Federated Dept. Stores, Inc., 40 AD3d 1339, 1343 [3d Dept 2007]; Turuseta v Wyassup-Laurel Glen Corp., 91 AD3d 632, 634 [2d Dept 2012]; see also McDougald v Garber, 73 NY2d 246, 257 [1989] [recognizing that "[t]ranslating" an individual's pain and suffering "into dollars and cents involves no mathematical formula"].) Thus, the starting point in determining an appropriate damages award is to review awards in "comparable cases." (Turuseta, 91 AD3d at 634.) Although compensation awarded in prior cases involving similar injuries is not binding, those decisions may "guide and enlighten" the Court. (Garcia v CPS 1 Realty, LP, 164 AD3d 656, 658 [2d Dept 2018].)

Factors to be considered in establishing an award for pain and suffering include "the nature, extent and permanency of the injuries, the extent of past, present and future pain and the long-term effects of the injury." (Nolan v Union Coll. Trust of Schenectady, NY, 51 AD3d 1253, 1256 [3d Dept 2008], lv denied 11 NY3d 705 [2008]; see Fabiano v State of New York, 170 AD3d 1301, 1303 [3d Dept 2019].) In reviewing compensation awarded in "comparable cases," the Court finds that the damages can range wildly from $100 (Martin v State of New York, UID No. 2012-029-049 [Ct Cl, Mignano, J., Nov. 29, 2012] [injuries to claimant's eye when a mirror fell from the wall and struck her eye]) to $50,000 (Artis v City of New York, 183 AD2d 685, 686 [2d Dept 1992] [plaintiff received seven stitches and provided Tylenol for discomfort]), to as much as $100,000 (Nash v Sue Har Equities, LLC, 45 AD3d 545, 546 [2d Dept 2007] [plaintiff suffered "pain to his head and a laceration requiring several stitches"].) Approximately twenty years ago, the Appellate Division 3rd Department reduced an award from $15,000 to $8,000 where the claimant was assaulted by another incarcerated individual (and defended himself, rendering one of his assailants unconscious) and required nine stitches. (Martin v State of New York, 39 AD3d 905, 906 [3d Dept 2007].)

The medical records themselves provide relevant details about Mr. Nunez's injuries. Sing Sing's medical staff identified a five inch by ¼ inch deep laceration on the right side of Mr. Nunez's cheek, including his right ear, a three-inch laceration on back of head, a three-inch scratch mark on left side back of head and back of neck, and a three-inch superficial laceration on left side of Mr. Nunez's face and neck. (State's exhibit B at 12.) The laceration on his cheek required 34 stitches and the cuts on the back of his head required 14 staples. (Claimant's exhibit 1 at 2.) Mr. Nunez credibly testified, and the Court observed, that the lacerations have formed visible scars.

Mr. Nunez's testimony about his injuries focused on how the scar on his face has impacted and continues to impact his daily life. Mr. Nunez credibly testified that he continues to have difficulty looking at himself in the mirror, experiences embarrassment related to the visible scarring, and still feels that the incident "took a little bit of humanity and joy" from him. Mr. Nunez's testimony did not offer details on the extent to which the injuries caused pain nor the ways in which he was limited in daily activities and for what, if any, period of time those limitations may have lasted. Nor was any expert testimony offered concerning claimant's injuries.

The Court finds the Martin v State of New York decision particularly instructive here. Mr. Nunez's injuries were significantly more extensive than the Martin claimant's injuries. The claimant in Martin received only nine stitches on various parts of his body whereas Mr. Nunez required 34 stitches and 14 staples on his face and head, respectively. The scarring from injuries has caused Mr. Nunez ongoing distress. Further, taking into account that the Martin decision was issued nearly 20 years ago, adjusting for inflation,¹⁰ the Court finds that $25,000 constitutes appropriate compensation for defendant's negligence and the resulting injuries sustained by claimant.

Accordingly, the Court awards claimant the total sum of $25,000 plus statutory interest pursuant to CPLR 5002 and 5004. To the extent claimant has paid a filing fee, it may be recovered pursuant to Court of Claims Act § 11-a (2).

Any motions on which the Court may have previously reserved or which were not previously determined are hereby DENIED.

The Clerk of the Court is directed to enter judgment accordingly.

Dated: July 1, 2026

New York, New York

SETH M. MARNIN

Judge of the Court of Claims

FOOTNOTES

1.   For the purposes of consistency and clarity, page numbers for exhibits correspond to the page of the document.

2.   More fully, the Court said, "Claimant correctly notes that the defendant wrongly contends that his notice of intention did not state the date his claim accrued. Indeed, the attachment to defendant's own motion papers confirms that claimant utilized a 'NOTICE OF INTENTION TO FILE A CLAIM' form and under the section that asks for the time when and the place where a claim arose, claimant clearly states 'Sing Sing Correctional Facility Ossining 354 Hunter St. Ossining NY 10562-5442 on L-gallery in A-Block between 9:30 am-10:00 am 6/26/22.' (emphasis added) If a valid notice of intention is timely and properly served upon the Office of Attorney General, the Court of Claims Act § 10 (3) extends the time to serve the claim to 'within two years after the accrual of such claim.' On its face, claimant's notice of intention satisfies the statutory requirements set forth in Court of Claims Act § 11 (b) stating the 'time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained.' Therefore, claimant's time to file his negligence claim has not expired since he has until June 26, 2024 to properly serve his verified claim."

3.   Had the State not requested the additional time, it would have had ten days to answer the claim, pursuant to CPLR 3211 (f).

4.   Without the request for additional time, the answer would have been due on November 20, 2023. Thirty days would have given the State until December 8, 2023, to timely file.

5.   Claimant is also ordered to provide to the Court and defendant all materials they intent to offer into evidence.

6.   Later during the trial, the State introduced the same undated notice of intention to file a claim for impeachment purposes. However, after discussion, the Court ruled that it was neither relevant to an issue of material fact in dispute nor independently admissible to impeach Mr. Nunez. The proffered notice of intention was thus collateral and inadmissible. (See e.g. Badr v Hogan, 75 NY2d 629, 635 [1990] [a cross-examiner may not introduce extrinsic evidence when it is neither relevant to an issue of material fact in dispute nor independently admissible to impeach a witness].)

7.   To the extent that the State's motion here is, in essence, a motion for leave to renew pursuant to CPLR 2221 (e), that section provides that a motion to renew "shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination." (CPLR 2221 [e] [2].) A movant shall also provide a "reasonable justification" for their failure to provide the facts on the prior motion. (CPLR 2221 [e] [3].) "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation." (Zito v Jastremski, 84 AD3d 1069, 1071 [2d Dept 2011] citing Renna v Gullo, 19 AD3d 472 [2d Dept 2005], Hart v City of New York, 5 AD3d 438 [2d Dept 2004], and Rubinstein v Goldman, 225 AD2d 328, 328-329 [1st Dept 1996].) The Court previously held that, on the evidence before it, the notice of intention served on the State complied with Court of Claims Act § 11 (b). Although the State provided a copy of an undated notice of intention the day before trial, the State's mere assertion that it inadvertently did not provide it with its original motion papers is insufficient justification for renewal, especially given the lengthy delay and where the State was in possession of that notice of intention not only at the time it filed the initial motion but was still in possession of it when the Court issued its decision on the motion. (Cioffi v S.M. Foods, Inc., 129 AD3d 888, 891 [2d Dept 2015] citing Rowe v NYCPD, 85 AD3d 1001, 1003 [2d Dept 2011] and Jovanovic v Jovanovic, 96 AD3d 1019, 1020 [2d Dept 2012]; see also Matter of Allstate Ins. Co. v Liberty Mut. Ins., 58 AD3d 727, 728 [2d Dept 2009].) Since the State lacks a reasonable justification as required for leave to renew, to the extent the State seeks leave to renew, it is denied. Moreover, permitting the State to again attack claimant's notice of intention to file a claim in this manner would circumvent the legislature's intent in Court of Claims Act § 11 (c), which sought to prevent precisely this type of surprise. (See Sinacore v State of New York, 176 Misc 2d 1, 6 [Ct Cl 1998], discussing the legislature's intent in adding section 11 (c) to the Court of Claims Act and to "correct the inequities of court dismissals" where claimants were "lulled into a sense of security until the Statute of Limitations ran out, only then to find their cases lost on a motion to dismiss for lack of jurisdiction" [internal citations and quotations omitted].) Had the State timely made such a motion, and had it been granted, claimant would still have had an opportunity pursuant to Court of Claims Act § 10 (6) to save his claim. By waiting until now to move, that avenue is closed to claimant.

8.   To be clear, on the record before the Court, the Court could have alternatively used the March 8, 2023, date to determine whether the answer was timely filed. However, the conclusion would be the same.

9.   Unless otherwise indicated, all quotations are to the audio recording of the trial of this claim.

10.   See United States Bureau of Labor Statistics, CPI Inflation Calculator, available at https://www.bls.gov/data/inflation_calculator.htm (last accessed July 1, 2026).

Seth M. Marnin, J.