Paul Gaity, Movant, v. The State of New York, Respondent. (2023)

Movant Paul Gaity, an incarcerated individual, seeks permission to file a late claim pursuant to Court of Claims Act (CCA) § 10(6) to recover damages for personal injuries incurred while he was in the custody of the Department of Corrections and Community Supervision (DOCCS) at Green Haven Correctional Facility. The proposed claim alleges that, on July 1, 2019, while returning to the general population housing unit, movant was allegedly assaulted by another incarcerated individual who was on keeplock status. The proposed claim alleges, among other things, that the State was negligent because facility personnel failed to escort and control the keeplock individual as required under facility policy. After consideration of all the relevant factors, the motion is granted in part and denied in part for the reasons stated below.

As an initial matter, and as the State apparently concedes, this motion is timely. It is undisputed that no claim or notice of intention to file a claim was timely served upon the Attorney General within 90 days of accrual of the claim on July 1, 2019 (see CCA § 10[3]). Although the underlying three-year statute of limitations for negligence claims (see CPLR 214[5]) would ordinarily have expired on July 1, 2022, movant's reliance on the benefit of the toll provided for by the series of Executive Orders issued by the Governor during the Covid-19 emergency is proper (see Brash v Richards, 195 AD3d 582, 583-585 [2d Dept 2021], citing Executive Orders and Foy v State of New York, 71 Misc 3d 605 [Ct Cl 2021]). With the benefit of this toll, movant's application is timely (see CCA § 10[6]).

CCA § 10(6) enumerates six factors to be weighed by the Court in connection with a late claim motion: (1) whether the delay 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 delay resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. This list is not exhaustive and the presence or absence of any one factor is not dispositive; rather, the Court in its discretion balances these factors in making its determination (see Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]; see also Tucholski v State of New York, 122 AD3d 612, 612 [2d Dept 2014]).

Movant contends that he was unable to file a timely claim due to the severity of his injuries, which included nasal and orbital fractures. As the State points out, however, the record indicates that movant was able to write a grievance on the date of the incident, which he filed on July 22, 2019. Further, movant pursued this grievance all the way through a review by DOCCS's Central Office Review Committee. Movant's argument that he was unable to bring a claim because it is a more complex process than filing a grievance and he was unable to obtain the assistance of counsel earlier is unpersuasive. Movant was able to adequately describe the date, location, nature of the claim, and his injuries on the date of the incident in his grievance letter. Nothing in the submissions before the Court indicates that movant's injuries reasonably prevented him from doing the same in the form of a claim (see Carmen v State of New York, 49 AD2d 965, 966 [3d Dept 1975] [stating that, although a movant need not "establish [the] complete physical or mental inability to file on time," the excuse nevertheless must be "reasonable"] [internal quotation marks omitted]). In addition, neither ignorance of the law and filing requirements, or a potential claimant's confinement in a correctional facility, constitute a reasonable excuse (see Innis v State of New York, 92 AD2d 606, 606 [2d Dept 1983], aff'd 60 NY2d 654 [1983]; see also Borawski v State of New York, 128 AD3d 628, 629 [2d Dept 2015]; Robinson v State of New York, 35 AD3d 948, 950 [3d Dept 2006]). The unreasonableness of the delay here, however, does not necessarily preclude the relief movant seeks (see Bay Terrace, 55 NY2d at 981 [1982]).

The State explicitly notes (see Scolavino Affirm. in Opp., at 4 n 1) that it is not refuting movant's arguments that he has no other remedy, or that the State had notice of the essential facts, an opportunity to investigate, and would not be substantially prejudiced by the filing of a late claim. Accordingly, these factors weigh in movant's favor (see Sessa v State of New York, 88 Misc 2d 454, 458, [Ct Cl 1976], aff'd 63 AD2d 334 [3d Dept 1978], aff'd 47 NY2d 976 [1979]; see also Schweickert v State of New York, 64 AD2d 1026, 1026 [4th Dept 1978]). Indeed, as movant notes, the State had actual notice of the essential facts because the incident took place in the presence of a corrections officer who later wrote a misbehavior report, and movant also filed and pursued a grievance with DOCCS shortly after the incident that resulted in a determination by the Central Office Review Committee.

The final and most important factor to consider in determining this application for late claim relief is whether movant has demonstrated the appearance of a meritorious claim, because " 'it would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request' " (Swart v State of New York, 211 AD3d 881, 883 [2d Dept 2022], quoting Prusack v State of New York, 117 AD2d 729, 730 [2d Dept 1986]; see also Calverley v State of New York, 187 AD3d 1426, 1427 [3d Dept 2020]). Movants need not establish a prima facie case at this stage of the proceedings (see Santana v New York State Thruway Auth., 92 Misc 2d 1, 11-12 [Ct Cl 1977]), but they have a heavier burden than those whose claims are timely filed (see Nyberg v State of New York, 154 Misc 2d 199, 202 [Ct Cl 1992]). A claim has the appearance of merit if it "is not 'patently groundless, frivolous or legally defective, and the record as a whole . . . give[s] reasonable cause to believe that a valid cause of action exists' " (Swart, 211 AD3d at 883, quoting Sands v State of New York, 49 AD3d 444, 444 [1st Dept 2008]; see also Calverley, 187 AD3d at 1427). In applying this standard, the Court may consider "all of the submitted papers, including affidavits and exhibits, to determine whether a putative claimant has met the statutory burden of apparent merit" (Fernandez v State of New York, 43 Misc 3d 1221[A], 2014 NY Slip Op 50741[U] [Ct Cl 2014]).

As relevant to the allegations here, the State owes a duty of care to safeguard incarcerated persons in its custody, even from attacks by other incarcerated persons (see Sanchez v State of New York, 99 NY2d 247, 252 [2002]). The State's duty to incarcerated persons "does not mandate unremitting surveillance in all circumstances," however, and "does not render the State an insurer" of their safety (see id. at 256; see also Casella v State of New York, 121 AD2d 495, 495-496 [2d Dept 1986]). Rather, the scope of the State's duty "is limited to risks of harm that are reasonably foreseeable" (Sanchez, 99 NY2d at 253). Foreseeability in this context is defined by both actual and constructive notice, i.e., what the State knew or should have known (see id. at 254-255). And constructive notice may be found "from [the State's] knowledge of risks to a class of inmates based on the institution's expertise or prior experience, or from its own policies and practices designed to address such risks" (id. at 254).

The sparse, but specific, allegations contained in the proposed verified claim and movant's affidavit, taken together, assert that corrections personnel violated facility policy governing the supervision and movement of individuals on keeplock status on the morning of July 1, 2019, when they failed properly to escort such an individual and thereby created a situation where that individual was free to attack movant.¹ In support of the motion, movant submits the DOCCS Facility Operations Manual for Block Procedures in Green Haven Correctional Facility, which provides that "[c]onfined inmates," including "keeplocks," are to be moved "by escort only" (F.O.M. No. 203, IV[B][4][c][5], Pollack Affirm. in Supp., Exh H). Where "[t]he State itself has identified the appropriate response to a risk of assaultive conduct"—here, an increased "risk of harm" or "risk of inmate-on-inmate attack" presented by the presence of an unaccompanied keeplock status individual among the general population—it is not "unforeseeable as a matter of law that th[e] type of conduct" alleged by movant might occur (Sanchez, 99 NY2d at 255 [discussing as relevant to the State's duty of care, and the question of foreseeability, a regulation requiring corrections officers to maintain constant contact with incarcerated persons when being moved between facilities] [internal quotation marks omitted]; see also Caruso v County of Suffolk, 234 AD2d 495, 495-496 [2d Dept 1996] [holding that summary judgment was improperly granted in case involving attack by one incarcerated person on another where an issue of fact existed as to whether corrections employees fulfilled the supervision requirements contained in applicable regulation]; Donaldson v State of New York, UID No. 2000-16-001 [Ct Cl, Marin, J., Mar. 7, 2000] [finding that DOCCS failed to comply with its own safety protocols regarding the level of supervision and procedures for escorting a keeplocked incarcerated individual who attacked the claimant]).

The State contends that the records of movant's prison grievance indicate that the keeplocked individual was in the presence of at least one corrections officer when being moved from a keeplock cell. But the Court may not engage in fact-finding in determining an application for late claim relief, and the existence of this factual dispute, which also implicates the factual question of what particular type of escort or escort procedures may have been required, does not preclude the finding of an appearance of merit for purposes of CCA § 10(6) (see Marcus v State of New York, 172 AD2d 724, 725 [2d Dept 1991]; see also Jomarron v State of New York, 23 AD3d 527, 528 [2d Dept 2005]). And to the extent the State contends that it is immune from liability because of the broad discretion DOCCS enjoys in formulating and implementing safety policies, this argument merely presents a potential defense to the claim, and movant does not carry the burden of proving the merit of his claim at this stage of the proceedings (see Santana, 92 Misc 2d at 12 [a movant seeking late claim relief is not required "to definitively establish the merits of [the] claim, or overcome all legal objections thereto, before the (C)ourt will permit him to file"]). In any event, the State's argument also appears unpersuasive because movant is not challenging DOCCS's actions in formulating any of its policies; rather, movant contends that DOCCS failed to comply with specific safety directives regarding the movement of incarcerated persons who are in keeplock status that it has already promulgated. Moreover, the State has not shown here that its acts involved the type of discretion for which governmental immunity typically applies (see Arteaga v State, 72 NY2d 212, 216 [1988]). Thus, the Court finds that so much of the claim as is premised on the allegation that the facility failed to comply with directives it had in place with respect to the movement of keeplocked individuals, is not patently groundless or frivolous and has at least a minimally sufficient appearance of merit.

However, to the extent the proposed claim purports to assert additional theories of liability or causes of action premised on other allegedly negligent acts by state actors, movant has shown no appearance of merit with respect to such theories or claims. Other than presenting a conclusory list in the proposed claim, neither the proposed claim nor movant's affidavit (nor anything else in the entirety of the submissions, for that matter) provide any particularized factual allegations to support these other distinct theories and claims (see Goldstein v State of New York, 75 AD2d 614, 614 [2d Dept 1980] [holding that "[t]he vague and general allegations of negligence in the proposed claim do not set forth a meritorious claim"]; Sevillia v State of New York, 91 AD2d 792, 792 [3d Dept 1982] [finding no appearance of merit where "allegations relating to the negligence of the State [were] general and conclusory, without any supporting facts"]). There are no factual allegations that movant's attacker had or used a weapon in the attack; that corrections personnel failed to remain at their assigned posts or timely intervene to stop the attack; that corrections personnel knew that movant's attacker was a danger to other incarcerated individuals such that they should have taken other action to prevent such an assault from taking place; that corrections personnel were aware of specific threats made by movant's attacker against movant and failed to take any action to protect him, or even that movant had ever received any such threats; that corrections personnel failed to grant movant's request for assignment to a different housing unit after receiving any threats, or even that movant had requested any such reassignment; nor that corrections staff failed to provide movant with the necessary medical attention after the attack, aggravating his injuries. These cursory allegations, unsupported by any factual basis, are plainly insufficient and would not survive a motion to dismiss; "[s]omething more than a mere formal allegation of negligence on the part of the State is needed" (Sevillia, 91 AD2d at 792). In addition, as to the alleged cause of action for medical malpractice, the potential merit of that claim may not be established without expert medical opinion evidence (see Robinson v State of New York, 35 AD3d at 950; see also Fiore v Galang, 64 NY2d 999, 1001 [1985]; Mosberg v Elahi, 80 NY2d 941, 942 [1992], aff'g 176 AD2d 710 [2d Dept 1991]).

Indeed, movant's arguments regarding the potential merit of his claim in his initial submission (see Pollack Affirm. in Supp., at ¶ 21-22) make no reference to the aforementioned additional theories and claims, and movant's reply submission (see Pollack Reply Affirm., at 2-3) merely lists them as an afterthought and acknowledges that the gravamen of the claim he seeks to assert is premised on negligent supervision specifically with respect to the alleged violation of the movement directive for keeplocked individuals. Movant's reply (see id. at 3) also recognizes the speculative nature of the other listed claims inasmuch as he concedes that no evidence to support them yet exists, but he is hoping some records may come to light in the discovery process that will (cf. Edens v State of New York, 259 AD2d 729, 730 [2d Dept 1999] [holding that "pre-claim discovery may not be used for the purpose of permitting the claimant to ascertain whether facts supporting a cause of action actually exist"]; Stewart v New York City Tr. Auth., 112 AD2d 939, 940 [2d Dept 1985] [noting same, citing CPLR 3102(c)]). Accordingly, as to these additional theories of liability and causes of action, the proposed claim is legally defective and, thus, lacks the appearance of merit necessary for purposes of CCA 10(6) relief to this extent (see Swart, 211 AD3d at 883 [explaining that a "legally defective" claim cannot satisfy the appearance of merit prong]; see also Calverley, 187 AD3d at 1427 [same]). Given movant's failure to establish the appearance of merit on these additional theories and claims, the motion for late claim relief is denied with respect thereto (see Morris v Doe, 104 AD3d 921, 921 [2d Dept 2013]).

In sum, after carefully considering and weighing the relevant statutory factors, late claim relief is warranted, in part, given the proposed claim's appearance of merit only to the extent outlined above; the State's failure to refute its notice of the essential facts constituting the claim and an opportunity to investigate the incident—which it appears to have conducted; no indication that defendant would suffer substantial prejudice if movant is permitted to file a late claim; and the absence of any other remedy (see Goldberg v State of New York, 122 AD2d 248, 249 [2d Dept 1986]; Swart, 211 AD3d 881; see also Calzada v State of New York, 121 AD2d 988 [1st Dept 1986] [citing remedial purposes of amendments to CCA § 10[6]). Accordingly, it is hereby

ORDERED that movant's application for late claim relief is GRANTED IN PART, as limited by the foregoing decision, and otherwise DENIED; and it is further

ORDERED that within sixty (60) days of the date of filing of this Decision and Order, movant shall file with the office of the Clerk of the Court a claim limited to the cause of action premised on allegations of negligent supervision specifically with respect to the asserted violation of the movement directive for keeplocked individuals; and within that same period, movant shall serve a copy of the claim upon the Office of the Attorney General personally or by certified mail, return receipt requested. In serving and filing the 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 of the Court of Claims.

April 12, 2023

Albany, New York

ZAINAB A. CHAUDHRY

Judge of the Court of Claims

Papers Considered:

1. Notice of Motion

2. Affirmation of Jeffrey R. Pollack, Esq. in Support of Motion, with Affidavit of Merit of Paul Gaity, and attached exhibits;

3. Affirmation of Assistant Attorney General Joseph E. Scolavino, in Opposition to Motion;

4. Reply Affirmation of Jeffrey R. Pollack, Esq.

FOOTNOTES

1.   Movant's affidavit further states that a corrections officer named Middlebrooks allowed the keeplocked individual out of his cell and failed to escort or control him. Although this allegation is made "[u]pon information and belief," other documents in the record reference CO Middlebrooks as having been present at the time of the alleged assault, including a misbehavior report authored by CO Middlebrooks and references to him in the CORC determination.

Zainab A. Chaudhry, J.