Opinion
# 2016-009-009 Claim No. NONE Motion No. M-87118
03-23-2016
DANTE CAPEL v. THE STATE OF NEW YORK
DANTE CAPEL, PRO SE HON. ERIC T. SCHNEIDERMAN Attorney General BY: Sean B. Virker, Esq., Assistant Attorney General, Of Counsel.
Synopsis
Claimant's motion seeking permission to serve and file a late claim based upon an inmate assault against him at Marcy Correctional Facility was denied, in part due to claimant's failure to establish a meritorious claim.
Case information
| UID: | 2016-009-009 |
| Claimant(s): | DANTE CAPEL |
| Claimant short name: | CAPEL |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court. |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | NONE |
| Motion number(s): | M-87118 |
| Cross-motion number(s): | |
| Judge: | NICHOLAS V. MIDEY JR. |
| Claimant's attorney: | DANTE CAPEL, PRO SE |
| Defendant's attorney: | HON. ERIC T. SCHNEIDERMAN Attorney General BY: Sean B. Virker, Esq., Assistant Attorney General, Of Counsel. |
| Third-party defendant's attorney: | |
| Signature date: | March 23, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant has brought this motion seeking permission to serve and file a late claim.
The following papers were considered by the Court in connection with this motion:
Notice of Motion; Affidavit in Support; Proposed Claim, with Attachments 1-3
Affirmation in Opposition, with Exhibits A-D (Exhibit C submitted in camera) 4
"Notice of Motion to Serve and File an Amended Claim;" "Affidavit in Support of a Motion to Serve and File an Amended Claim," with Exhibits A-B 5, 6
Affirmation, with Exhibit 7
In his proposed claim, claimant seeks damages for personal injuries allegedly suffered by him when he was attacked by other inmates at Marcy Correctional Facility (Marcy), where he was then incarcerated, on November 8, 2014.
Pursuant to Court of Claims Act § 10 (6), if a claimant fails to timely serve or file a claim, or fails to timely serve and file a Notice of Intention to File a Claim, he or she may move the Court for permission to file and serve a late claim, provided that the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. As claimant's proposed claim asserts a cause of action based upon negligence, a three-year statute of limitations (CPLR 214 [5]) applies, and this application for late claim relief is therefore timely, based upon the date of the alleged assault as November 8, 2014.
In order to determine an application for permission to serve and file a late claim, the Court must consider, among other relevant factors, the six factors set forth in Section 10 (6) of the Court of Claims Act. The factors set forth therein are: (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 meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim ( see Matter of Gavigan v State of New York , 176 AD2d 1117 [3d Dept 1991]).
With regard to excuse, claimant states that he is a layperson and was not aware of the filing and service requirements of the Court of Claims Act. Claimant further sets forth other factors which he contends also contributed to his failure to timely file and serve his claim, specifically "the fact of my incarceration in the state prison system, as well as me being fearful of any retaliation from persons affiliated with the individuals involved. Plus my limited ability to confer with counsel, and my lack of access to any legal references due to the fact that I was placed in protective custody." Ignorance of the law, however, is not an acceptable explanation for the failure to timely serve and file a claim (see Matter of Galvin v State of New York, 176 AD2d 1185 [3d Dept 1991], lv denied 79 NY2d 753 [1992]). Similarly, the mere fact that a claimant is incarcerated, combined with conclusory allegations that he is without access to legal references, also does not qualify as a reasonable explanation (Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002]). Based on the foregoing, therefore, the Court finds that claimant has failed to present an acceptable excuse for failing to timely serve and file his claim.
The factors of notice, opportunity to investigate, and substantial prejudice will be considered together. Defendant concedes that facility officials were immediately aware of the assault when it occurred, since a correction officer immediately responded (while making his rounds) and claimant required medical treatment for his injuries. Defendant, however, contends that claimant failed to establish that the State was aware of "the precise claim now being asserted, namely, that it permitted or is somehow responsible for such assaults" (Matter of Sandlin, 294 AD2d at 724 [emphasis in original]).
The Court finds, however, that the incident report prepared by staff at Marcy, combined with claimant's medical reports, provided the State with notice of the essential facts constituting this claim, as well as providing the State with an opportunity to investigate the circumstances surrounding the claim. Based upon the existence of these reports and records, the Court finds that the State would not be substantially prejudiced should this motion be granted.
The next factor, often deemed the most critical, is whether the proposed claim has the appearance of merit. If claimant cannot establish a meritorious claim, it would be an exercise in futility to grant a late claim application (Savino v State of New York, 199 AD2d 254 [2d Dept 1993]; Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]). In order to establish a meritorious cause of action, claimant has the burden to show 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 (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1 [Ct Cl 1977]). Unlike a party who has timely filed a claim, however, one seeking permission to file a late claim has the heavier burden of demonstrating that the proposed claim appears to be meritorious (see Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]).
As stated at the outset herein, claimant has alleged that he was assaulted by other inmates at Marcy on November 8, 2014 between 5:00 p.m. and 6:00 p.m. and that he suffered three long gashes on the side of this face which required medical attention. Although not set forth in his proposed claim, claimant alleges in his supporting affidavit to this motion that the claim is based "on negligence on the part of correctional officers and their failure to properly fulfill the duties that they are required to do while in the discharge of their duties." This broad and conclusory allegation of negligence, however, is unsupported by any factual detail or evidence, nor does it establish to any degree whatsoever that the State failed to exercise reasonable care to protect him from any foreseeable risk or harm (see Matter of Sandlin, 294 AD2d at 725). Claimant has alleged absolutely no facts with respect to foreseeability, nor any other facts that would support any inference of negligence against the State. The Court finds, therefore, that claimant has failed to establish the appearance of a meritorious claim in his initial application.
Perhaps realizing (after receiving defendant's opposition papers) that his late claim application was deficient, claimant requested an adjournment and then served his "Notice of Motion to Serve and File an Amended Claim" and his "Affidavit in Support of a Motion to Serve and File an Amended Claim." In his proposed "Amended Claim" (Exhibit B to Items 5, 6), claimant reiterates, in more detail than set forth in the original claim, the particulars regarding the assault against him. Claimant also alleges that the correction officer on duty in his dorm area had an opportunity to intervene earlier during the assault, but that he was not "paying attention to the inmates, as he should have," and therefore did not come to claimant's immediate aid and assistance. Claimant alleges that if the correction officer had responded earlier, the cuts that claimant received to his face could have been prevented, and he would not have needed the stitches that he received as a result of the attack upon him.
Despite the additional details provided in claimant's proposed "Amended Claim" and in his "Affidavit in Support of a Motion to Serve and File an Amended Claim," claimant has failed to establish, or even remotely suggest, that the assault upon him was reasonably foreseeable. There is no suggestion that the Department of Correctional Services officials or employees at Marcy had any notice or indication that an assault was foreseeable. While the State certainly has a duty to safeguard inmates from attacks by fellow inmates (Sanchez v State of New York, 99 NY2d 247 [2002]), "[t]he mere occurrence of an inmate assault, without credible evidence that the assault was reasonably foreseeable, cannot establish the negligence of the State" (id at 256). The allegations made by claimant are insufficient to support a finding that the State failed to exercise reasonable care for his safety and protection. Furthermore, the additional details and allegations provided by claimant (i.e., that the correction officer failed to respond to the attack and failed to come to claimant's immediate aid), unsupported by factual detail, also fail to establish the merit of his claim.
It appears to the Court that claimant may have another legal remedy in seeking damages directly from the assailants who assaulted him.
The Court may in its discretion place as much or as little weight on any of the six factors to be considered pursuant to the statute. Under the current law "[n]othing in the statute makes the presence or absence of any one factor determinative" (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981 [1982]), and none of the factors can require denial as a matter of law.
Accordingly, after a review of the papers submitted herein, and after weighing and considering all of the factors set forth under Court of Claims Act § 10 (6), and after concluding that claimant has failed to establish the appearance of a meritorious claim, it is the opinion of this Court that claimant should not be allowed to serve and file his proposed claim.
Therefore, it is
ORDERED, that motion No. M-87118 is hereby DENIED.
March 23, 2016
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims