Opinion
# 2014-044-551 Claim No. None Motion No. M-85203
09-16-2014
TYRELL D. WILLIAMS v. THE STATE OF NEW YORK
TYRELL D. WILLIAMS, pro se HON. ERIC T. SCHNEDIERMAN, ATTORNEY GENERAL BY: Roberto Barbosa, Assistant Attorney General
Synopsis
Case information
| UID: | 2014-044-551 |
| Claimant(s): | TYRELL D. WILLIAMS |
| Claimant short name: | WILLIAMS |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-85203 |
| Cross-motion number(s): | |
| Judge: | CATHERINE C. SCHAEWE |
| Claimant's attorney: | TYRELL D. WILLIAMS, pro se |
| Defendant's attorney: | HON. ERIC T. SCHNEDIERMAN, ATTORNEY GENERAL BY: Roberto Barbosa, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 16, 2014 |
| City: | Binghamton |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an inmate proceeding pro se, moves for permission to file and serve a late claim to recover for personal injuries allegedly received when he was attacked by a fellow inmate while in the custody of the Department of Corrections and Community Supervision (DOCCS) at Elmira Correctional Facility (Elmira). Defendant State of New York (defendant) opposes the motion. Claimant replies.
Defendant argues that the motion should be denied because claimant has failed to provide a notice of motion as required by the Uniform Rules for the Court of Claims (22 NYCRR) § 206.8. However, a review of the motion papers reveals that the relief demanded is permission to file a late claim and claimant has addressed the relevant factors in support of his request. Moreover, defendant was timely notified of the motion return date, in writing, by the Acting Clerk of the Court. Because defendant has received the type of information normally provided by a notice of motion and has provided timely opposition (see CPLR 2214 [a]; cf. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2215:1), the Court will exercise its discretion and waive the requirement that a notice of motion be served and filed in this case (Uniform Rules for the Court of Claims [22 NYCRR] § 206.1 [b]; see Malik v State of New York, UID No. 2008-038-582 [Ct Cl, DeBow, J., Jan. 22, 2008]).
A motion seeking permission to file and serve a late claim must be brought within the statute of limitations period attributable to the underlying cause of action (Court of Claims Act § 10 [6]). In his proposed claim, claimant alleges that he was attacked by another inmate on September 28, 2013 due to defendant's inadequate staffing and supervision. The applicable statute of limitations for a cause of action alleging negligence is three years (CPLR 214 [5]). Accordingly, this motion made on May 19, 2014 is timely (see Matter of Unigard Ins. Group v State of New York, 286 AD2d 58 [2d Dept 2001]).
Having determined that the motion is timely, the Court turns to a consideration of the merits of the motion itself. The factors that the Court must consider under Court of Claims Act § 10 (6) in determining a motion to permit a late filing of a claim are whether:
1) the delay in filing the claim was excusable;
2) defendant had notice of the essential facts constituting the claim;
3) defendant had an opportunity to investigate the circumstances underlying the claim;
4) the claim appears to be meritorious;
5) the failure to file or serve upon the attorney general a timely claim or to
serve upon the attorney general a notice of intention resulted in substantial prejudice to defendant; and
6) claimant has any other available remedy.
Claimant asserts that his delay in serving the claim was due to the cruel and unusual conditions to which he was subjected in the facility, including the lack of access to the law library. Claimant's ignorance of the requirements of the Court of Claims Act and his lack of access to the law library because of his incarceration are not adequate excuses for his delay in timely serving a notice of intention or timely filing and serving a claim (see Matter of Sandlin v State of New York, 294 AD2d 723 [3d Dept 2002], lv dismissed 99 NY2d 589 [2003]; Plate v State of New York, 92 Misc 2d 1033 [Ct Cl 1978]). Accordingly, this factor weighs against claimant.
The three factors of notice of the essential facts, an opportunity to investigate and the lack of substantial prejudice are frequently analyzed together since they involve similar considerations. Defendant candidly admits that it has knowledge of the essential facts, an opportunity to investigate the matter, and that it will not suffer any prejudice because of the late filing of a claim. Thus, the factors of notice, an opportunity to investigate, and the lack of substantial prejudice weigh in favor of claimant.
Another factor to be considered is whether claimant has any other available remedy. Claimant asserts that no other remedy is available to him pursuant to Correction Law § 24, and defendant does not dispute the issue. Accordingly, this factor also weighs in favor of claimant.
The issue of whether the proposed claim appears meritorious is the most crucial component in determining a motion under Court of Claims Act § 10 (6), since it would be futile to permit a meritless claim to proceed (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 10 [Ct Cl 1977]). In order to establish a meritorious claim, a claimant must demonstrate 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 (id. at 11). There is a heavier burden on a party moving for permission to file a late claim than on a claimant who has complied with the provisions of the Court of Claims Act (see id. at 11-12; see also Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]).
It is well-settled that the State must provide inmates with reasonable protection against foreseeable risks of attack by other inmates (Blake v State of New York, 259 AD2d 878 [3d Dept 1999]). Despite this obligation, however, the State is not the insurer of the safety of inmates, and the fact that an assault occurs does not give rise to the inference of negligence (Colon v State of New York, 209 AD2d 842 [3d Dept 1994]). In order to establish that the State is liable for such an assault, an inmate claimant must allege and ultimately prove that the State knew or should have known that there was a risk of harm to the claimant which was reasonably foreseeable and inadequately addressed (Sanchez v State of New York, 99 NY2d 247 [2002]; see also Flaherty v State of New York, 296 NY 342 [1947]). In other words, 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 (Sanchez, 99 NY2d at 252).
Claimant alleges that he was working in the scullery section of the facility mess hall kitchen when he was attacked from behind by a fellow inmate and suffered personal injuries. According to claimant, Elmira's mess hall has three dining areas, each having its own entrance. He further states that each dining area also has a "secured" door leading to the restricted area where the workers are located, including the scullery area. He indicates that each dining area is also supervised by its own correction officer and there is an officer's station which allows an officer to walk around in a booth above the entire mess hall. Claimant asserts that officer stations were strategically placed in order to provide active supervision because of the restricted areas. Claimant notes that on the day he was attacked, breakfast had not yet been served, and his assailant was returning from an early medication run. Claimant explains that in order to gain entry into the mess hall, either an officer in the officer station would "buzz" the door open or another officer would open the door manually (presumably with a key). Once inside this first door, there is another door which separates the workers behind the counter from the inmates they are serving. The second door can only be opened by an officer manually. Claimant indicates that there is then a third door which separates the servers from the back kitchen area where he was working. Claimant states that none of the three doors are ever supposed to be unsecured at the same time, so that inmates cannot have free movement in that area. Claimant states that in order to access the scullery, his assailant had to go past five security stations, then three doors which should have been secured, and finally past four correction officers. Claimant alleges that his assailant was not a mess hall worker and did not otherwise have authorization to be in the restricted area. He further notes that because all mess hall workers are dressed in white, an inmate wearing green clothing should have been readily seen and not allowed in the restricted area. In his reply affidavit, claimant further asserts that only workers are allowed in the secured kitchen area because there are metal knives, pots, pans, and spatulas which are weapon grade material. He reiterates that the three doors should have been secured and supervised by staff.
Conversely, defendant argues that claimant has failed to provide factual allegations that defendant knew or should have known that claimant was at risk of harm or that he had problems with, been threatened by, or needed to be segregated from his assailant. Defendant further contends that there is no evidence that the assailant was prone to perpetrating such an attack or that defendant had notice of or an opportunity to prevent the assault before it happened.
Claimant has alleged that it was standard protocol to have active supervision as well as several locked doors in the mess hall/kitchen area. Given the availability of weapons in the area, it is reasonable that defendant would restrict the ability to enter the area in order to maintain the safety and security of the facility, including the staff and inmates. Claimant's assertions have not been contradicted or denied in an answering affidavit by a representative of defendant with personal knowledge of the situation. Accordingly, these statements are deemed true for the purposes of this motion (247-59 W., LLC v State of New York, 27 Misc 3d 570 [Ct Cl 2010]; Nyberg, 154 Misc 2d at 202; see also Schweickert v State of New York, 64 AD2d 1026 [4th Dept 1978]; Cole v State of New York, 64 AD2d 1023 [4th Dept 1978]). Claimant's assertions support a reasonable inference that defendant may have been negligent in not having the three doors secured and/or that officers may not have been at their assigned posts. The Court finds that the claim has at least the initial appearance of merit at this stage in the proceedings. Therefore, this factor weighs in claimant's favor. Five of the six statutory facts including the crucial factor of merit weigh in favor of claimant.
Claimant has also requested permission to proceed as a poor person. At the time claimant files his claim, he may request a reduction of the filing fee. Assignment of counsel in civil matters is discretionary and generally is denied except in cases involving grievous forfeiture or the loss of a fundamental right (see Matter of Smiley, 36 NY2d 433 [1975]; Hines v State of New York, UID No. 2005-028-534 [Ct Cl, Sise, P.J., June 21, 2005]). Claimant's allegations of defendant's negligence in connection with the assault by a fellow inmate are of the nature that would typically be handled by counsel on a contingent fee basis. There is no constitutional or statutory authority for the assignment or compensation of counsel under the present circumstances, and this Court will not exercise its discretion to assign counsel in this matter (see Matter of Smiley, 36 NY2d at 438). Accordingly, to the extent that claimant seeks assignment of counsel, it is denied.
Attached to his affidavit in support of this motion to late file and serve a claim, is an "Affidavit in Support of Application Pursuant to CPLR 1101 (f)." In this affidavit, claimant requests permission to prosecute the claim as a poor person and for assignment of counsel as well as for a reduction in the filing fee. It is unclear whether claimant included this document in the motion papers served on defendant, as defendant has not addressed the issue.
In conclusion, claimant's motion for leave to file and serve a late claim is granted. Claimant shall file a claim containing the information required by Court of Claims Act § 11 (b), and setting forth the aforementioned negligence cause of action. Claimant shall file said claim and serve a copy of it upon the Attorney General within forty (40) days from the date of filing of this Decision and Order in the Office of the Clerk of the Court. The service and filing of the claim shall be pursuant to the strict requirements of the Court of Claims Act. Claimant's motion for leave to proceed as a poor person is denied in its entirety.
September 16, 2014
Binghamton, New York
CATHERINE C. SCHAEWE
Judge of the Court of Claims
The following papers were read on claimant's motion:
1) Affidavit of Tyrell D. Williams, sworn to on May 14, 2014, and attachments, filed on May 23, 2014; "Affidavit in Support of Application Pursuant to CPLR 1101 (f)" of Tyrell D. Williams dated May 14, 2014.
2) Affirmation in Opposition of Roberto Barbosa, Assistant Attorney General, dated July 2, 2014, and attached exhibit.
3) Reply "Answer in Opposition" of Tyrell D. Williams dated July 7, 2014.