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Supreme Court, Appellate Division, Second Department, New York.

Lee EDENS, respondent, v. STATE of New York, appellant.

Decided: March 29, 1999

GUY JAMES MANGANO, P.J., FRED T. SANTUCCI, GABRIEL M. KRAUSMAN and ANITA R. FLORIO, JJ. Eliot L. Spitzer, Attorney-General, New York, N.Y. (Peter G. Crary and Robert M. Goldfarb of counsel), for appellant.

In a claim to recover damages for personal injuries, the defendant appeals, as limited by its brief, from so much of an order of the Court of Claims (Marin, J.), dated May 19, 1998, as held certain branches of the claimant's motion for leave to file a late claim in abeyance and directed that there be pre-claim discovery.

ORDERED that on the court's own motion, the appellant's notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted;  and it is further,

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the motion is denied.

On October 6, 1995, the claimant, an inmate at the Great Meadow Correctional Facility, allegedly sustained injuries when he was assaulted by other inmates.   Although the claimant filed a pro se notice of intention to file a claim within the 90-day period to file a claim, the notice of intention was jurisdictionally defective because it was sent by regular mail (see, Court of Claims Act § 11 [a];  Philippe v. State of New York, 248 A.D.2d 827, 669 N.Y.S.2d 759;  Adkison v. State of New York, 226 A.D.2d 409, 640 N.Y.S.2d 787;  Curtis v. State of New York, 206 A.D.2d 943, 616 N.Y.S.2d 266;  Bogle v. State of New York, 175 A.D.2d 493, 572 N.Y.S.2d 949).   Approximately 2 years and 2 1/212 months after the accrual date, the claimant moved for leave to file a late claim.

 In determining whether to grant or deny a motion for leave to file a late claim, the court must consider the six factors delineated in Court of Claims Act § 10(6).   Those factors are not exhaustive and the presence or absence of any one factor is not controlling (see, Bay Terrace Coop. Section IV v. New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 N.Y.2d 979, 981, 449 N.Y.S.2d 185, 434 N.E.2d 254;  Matter of Gavigan v. State of New York, 176 A.D.2d 1117, 1118, 575 N.Y.S.2d 217;  Kelly v. State of New York, 88 A.D.2d 613, 450 N.Y.S.2d 45).   The claimant proffered no excuse for the delay in filing a claim.   Furthermore, the Court of Claims correctly determined that the claim does not appear meritorious, as the claimant did not specify how the State failed to provide inmates with reasonable protection against foreseeable risks of attack by other prisoners (see, Court of Claims Act § 11[b];  Pierrelouis v. State of New York, 255 A.D.2d 824, 682 N.Y.S.2d 110;  Morales v. County of Westchester, 250 A.D.2d 580, 671 N.Y.S.2d 991;  Stanley v. State of New York, 239 A.D.2d 700, 657 N.Y.S.2d 481;  Caruso v. County of Suffolk, 234 A.D.2d 495, 652 N.Y.S.2d 58;  White v. State of New York, 167 A.D.2d 646, 563 N.Y.S.2d 239;  Casella v. State of New York, 121 A.D.2d 495, 503 N.Y.S.2d 588;  Sebastiano v. State of New York, 112 A.D.2d 562, 564, 491 N.Y.S.2d 499).

 Nevertheless, the Court of Claims held the motion in abeyance for 90 days to allow the New York State Department of Corrections to provide the claimant with all reports concerning the alleged assault.   The Court of Claims abused its discretion in sua sponte ordering pre-claim discovery (see, Court of Claims Act § 17[2];  CPLR 3102[f] ) since 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 (see, Matter of Scattoreggio v. Cablevision Sys. Corp., 203 A.D.2d 468, 610 N.Y.S.2d 319;  Matter of Stewart v. New York City Tr. Auth., 112 A.D.2d 939, 940, 492 N.Y.S.2d 459;  State of New York v. Braunstein, 66 A.D.2d 885, 411 N.Y.S.2d 673;  Matter of Houlihan-Parnes, Realtors v. Cantor, Fitzgerald & Co., 58 A.D.2d 629, 630, 395 N.Y.S.2d 684).   Therefore, since the claim does not appear to be meritorious, the motion for leave to file a late claim should have been denied (see, Savino v. State of New York, 199 A.D.2d 254, 604 N.Y.S.2d 970).

Moreover, the Court of Claims was correct in declining to treat the notice of intention as a claim since the notice of intention did not contain facts sufficient to constitute a claim (see, Court of Claims Act §§ 10[8] and 11 [b] ).


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