Cronin v State of New York
Annotate this CaseDecided on November 15, 2016
Court of Claims
Russell Anthony Cronin, Claimant
against
The State of New York, Defendant
2016-031-082
Claimant's attorney:
THE LAW OFFICE OF RENÉ MYATT
BY: RENÉ MYATT, ESQ.
Defendant's attorney:
HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.
Assistant Attorney General
Third-party defendant's attorney:
Renee Forgensi Minarik, J.
This is Claimant's motion seeking permission to file a late Claim pursuant to Court of Claims Act (CCA) § 10 (6). In his proposed claim, Mr. Cronin alleges a negligence cause of action relating to Defendant's failure to protect him from an assault by two other inmates in the recreation yard at Attica Correctional Facility (Attica) on May 24, 2014.
Subdivision 6 of section 10 of the CCA enumerates six factors to be weighed in connection with a late claim motion: (1) whether the delay was excusable; (2) whether Claimant has any other remedy; (3) whether Defendant had notice of the essential facts constituting the claim; (4) whether Defendant had an opportunity to investigate; (5) whether Defendant would be substantially prejudiced; and (6) whether the claim appears to be meritorious. 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 (Bay Terrace Coop. Section IV v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 [1982]).
In its opposition to this motion, Defendant does not dispute that it had notice and a chance to investigate the occurrences described in the proposed claim. These factors, accordingly, are presumed to weigh in Claimant's favor (see Calzada v State of New York, 121 AD2d 988 [1st Dept 1986]; Cole v State of New York, 64 AD2d 1023, 1024 [4th Dept 1978]).
Defendant disputes, however, that Claimant has demonstrated a reasonable excuse for his delay, that Defendant has not been prejudiced by the delay, that no other remedies are available and the merit of the proposed claim.
With regard to his excuse for the delay, Claimant argues that he had previously filed and served a claim that was dismissed on motion by Defendant for technical jurisdictional defects, and that the decision to dismiss the claim has been appealed. Although such matters may indicate notice to Defendant of the matters asserted, they do not provide a reasonable excuse for the delay. To the extent that Claimant's application implies that the delay was the result of law [*2]office failure, I note that this does not suffice as an acceptable excuse (see Sessa v State of New York, 88 Misc 2d 454, 459-460 [1976], affd 63 AD2d 334 [3d Dept 1978], affd 47 NY2d 976 [1979]; Nyberg v State of New York, 154 Misc 2d 199 [Ct Cl 1992]). This factor, therefore, weighs in Defendant's favor.
With regard to an alternative remedy, Defendant argues that the appeal of the dismissal of the previous claim constitutes an alternative remedy. Not knowing how this appeal will go however, I find that Claimant is merely being prudent by filing a timely late claim application. In any event, that remedy, an action in the Court of Claims, is the same, not an alternative. I find that this factor weighs in Claimant's favor.
With regard to the factor of prejudice, Defendant argues that one of Claimant's assailants had been released and that the sergeant who investigated the claim is no longer at Attica. There has been no showing, however, that these individuals cannot be located, or that their testimony is indispensable. I find that this factor also weighs in Claimant's favor.
Of the six enumerated factors in CCA § 10 (6), it is the appearance of merit that is most significant, as it would be pointless to grant permission to file late if the proposed claim did not have at least the appearance of merit (Matter of Martinez v State of New York, 62 AD3d 1225 [3d Dept 2009]). On this point, Defendant argues that Claimant has failed to meet his burden.
The State has a duty to use reasonable care to protect inmates in its correctional facilities from foreseeable risks of harm, including the risk of harm from other inmates (Blake v State of New York, 259 AD2d 878 [3d Dept 1999]; Colon v State of New York, 209 AD2d 842 [3d Dept 1994]). The State, however, is not an insurer of the safety of inmates, and the mere fact that an assault occurs does not give rise to an inference of negligence (Sebastiano v State of New York, 112 AD2d 562 [3d Dept 1985]). In fact, even the total absence of a prison guard in the area of an assault is insufficient to establish liability, absent a showing that the State had notice of a dangerous situation (Padgett v State of New York, 163 AD2d 914 [4th Dept 1990], lv denied 76 NY2d 711 [1990]). In order to establish liability, Claimant must allege and prove that the State knew or should have known that there was a risk of harm to Claimant which was reasonably foreseeable and which the State could have prevented (Sanchez v State of New York, 99 NY2d 247 [2002]; Melvin v State of New York, 101 AD3d 1654 [4th Dept 2012]).
In this instance, Claimant asserts that he was attacked by members of a gang known as the "Bloods." He further asserts that this attack was due either to the fact that Claimant had refused to join the gang, or because he is Caucasian. He argues that Defendant was negligent because there were no correction officers in Claimant's vicinity at the time of the assault and that Defendant failed to screen the inmates in the yard that day with magnetometers. However, the fact that gangs, which are not permitted in the correctional setting, nonetheless exist, does not give rise to notice of any specific dangerous situation (Ferrell v State of New York, UID No. 2012-010-043 [Ct Cl, Ruderman, J., Nov. 19, 2012]; Savoca v State of New York, UID 2003-010-037 [Ct Cl, Ruderman, J., Dec. 3, 2003]). Further, the fact that Claimant is Caucasian also does not provide Defendant with notice that harm to him was reasonably foreseeable. Accordingly, I find that Defendant did not have notice of a dangerous situation.
As stated above, without notice that a dangerous situation exists, unremitting supervision is not required (Padgett v State of New York, 163 AD2d 914). And, while the use of magnetometers is permitted by Directive 4910, it is not required. Whether or not to utilize [*3]available magnetometers is a discretionary determination, and Defendant is immune from liability for that determination (Brown v State of New York, UID No. 2012-015-536 [Ct Cl, Collins, J., Mar. 22, 2012]).
I find that Claimant has failed to demonstrate that the assault upon him was reasonably foreseeable or that any actions or inactions on the Defendant's part contributed to the assault. Accordingly, Claimant has failed to demonstrate the merit of his proposed claim.
Upon reviewing and balancing all of the factors enumerated in CCA § 10 (6), the Court finds that they weigh in Defendant's favor. Based upon the foregoing, it is hereby
ORDERED, that Claimant's motion for permission to file a late claim is denied.
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