It is,ORDERED that the motion of the Claimant for leave to serve a late Notice of Claim is [*2]granted; and it is further

ORDERED that the County is directed to serve a copy of this order on the Claimant; and it is further

ORDERED that the Notice of Claim is deemed timely filed nunc pro tunc as of the date of this order; and it is further

ORDERED that the Clerk is directed to mail a copy of this order to the Pro Se Claimant at the address provided by him in his motion, the proposed Notice of Claim, and in his affirmation in reply to the opposition of the Defendant, which address is:

Collins Correctional Facility

P.O. Box 340

Collins, New York 14034-0340.

In his affidavit, Edgar Quinones, in support of this application for leave to serve a late notice of claim, alleges that on December 15, 2006, while he was an inmate at the Yaphank Jail, he was assaulted by Blood Street gang members who were inmates at the facility. He alleges that these gang members were stealing food from inmates at the facility and when he resisted them, he was beaten severely by them. After this assault and battery, agents or employees of the Defendant transported Quinones to the Brookhaven Hospital Emergency Room for treatment and were present when a CAT scan was ordered by the attending physician. An optometrist was also consulted at the hospital's emergency room and the Suffolk County authorities took Quinones to a different optometrist approximately four days after the assault to check on his eyesight. In addition, he was taken to a plastic surgeon for further assessment of his medical injuries. As a result, Quinones was admitted to a hospital in Riverhead for surgery and two plates were placed into his face to repair the orbital fractures he suffered as a result of the assault. Quinones was then placed by the authorities in the medical wing of the Suffolk County Jail.

The inmates who committed the assault were charged criminally and the allegations involved in this civil matter were investigated by the District Attorney of Suffolk County. The Sheriff's Department of Suffolk County, the Department of Health of Suffolk County and the Suffolk County District Attorney all had knowledge of the assault on Quinones and both the Sheriff's Department and the District Attorney, at a minimum, had an obligation to investigate the facts surrounding the assault that caused Quinones' injuries. The County has all of the medical records of Quinones necessary to conduct the preliminary investigation.

Quinones, a pro se litigant, states that he suffered extreme pain due to the trauma caused by the orbital fractures and that after he was injured he was placed on the medical tier of the Suffolk County Correctional Facility because of his injuries. On the medical tier, he was locked up for 21 hours a day, he had visual problems caused by his injuries and he had no access to legal books necessary for him to discover that he was required to file a Note of Issue. In addition, he was [*3]placed on medication for pain management which he stated caused him mental confusion. The Court takes notice that prior to this application, the Court granted Quinones' application for poor person relief while he was an inmate of Collins Correctional Facility in upstate New York. It is therefore obvious that not only was the Claimant suffering a physical disability caused by his injuries but his freedom of movement was severely restricted and he did not have any significant financial resources. According to Quinones affidavit, he has been moved from correctional facility to correctional facility, he has not received all of his mail while a prisoner and he did not receive the written notice sent from the County of Suffolk that they were unable to respond to his motion to file a late Notice of Claim (see, Defendants' Exhibit "C").

In opposition to the motion for leave to file a late Notice of Claim, the County alleges that Quinones has not filed a Notice of Claim within ninety days of the incident as required by the General Municipal Law and that a late Notice of Claim was received in the mail from the Plaintiff at the Suffolk County County Attorney's office on November 5, 2007, without an index number attached to the papers. Susan A. Flynn, Esq., the Bureau Chief of the Suffolk County State and Federal Torts Bureau, replied by letter dated November 9, 2007 advising the Claimant that the Notice of Claim was rejected.

Thereafter, on December 24, 2007, the Suffolk County Attorney received a Notice of Motion to Extend the Time to File a Note of Issue. No index number appeared on these motion papers and the County alleges that it was not able to ascertain if the motion was submitted to the Court by a search of the Court Docket. Since the County Attorney had no index number and could not find the motion on the Court's calendar, they were unable to respond by submitting opposition papers. The opposition to this motion was received from the County late in May of 2008, after the Suffolk County Attorneys office was informed by the personnel in this Part that a motion had been calendared by the Court .

In reply to the opposition of the Defendants, Quinones states that he did not place an index number on his papers because he was seeking poor person relief by a separate written motion apparently submitted simultaneously with this motion. In that separate application, Quinones sought a Court order exempting him from the payment of Court fees.

The Special Term Clerk of the Supreme Court originally calendared only the ex parte motion for poor person relief and sent a packet to this Part that contained the calendared application for poor person relief and the un-calendared motion for leave to serve a late Notice of Claim. The motion for leave to serve a late Notice of Claim, identified as Motion Sequence No. 002, did not appear on the paper copy of this Part's motion calendar which was submitted on January 17, 2008, the first day that this Court had motions after the return date of the instant application.^[FN1] [*4]

When Chambers in Central Islip reviewed the packet of papers received from Special Term in Riverhead, the un-calendared motion to extend the time to file a late Notice of Claim was discovered by this Part and that motion was sent back to Special Term to allow them to place the motion on the calendar. Since the motion papers initially were not properly calendared by the Court, the County could not obtain notice of the return date of the motion from checking the Court docket. Therefore, although the motion does have an affidavit of service on the County attached to the Claimant's motion papers and the County admits that it did receive the motion from the Claimant, it could not file a response because it had no index number and no means to ascertain the index number from the motion docket. Even if the County had filed opposition, the Court would probably have rejected it because there was no motion on the docket and there would have been no index number on the County's opposition.

As noted above, the County's affirmation is opposition was received in late May of 2008, and then the Claimant's reply to the opposition was not received in Chambers until the beginning of June of 2008. This motion was adjourned by the Court to June 16, 2008, in order to ensure that all motion papers from the parties, which must be processed through Riverhead and then sent to Central Islip, were physically received by Chambers located in Central Islip and would be read and considered before a decision was issued.

Generally, prison authorities have a duty to provide inmates with reasonable protection against foreseeable risks of attack by other prisoners(see, Schulik v. County of Monroe, 202 AD2d 960, 609 NYS2d 502). However, the Sheriff and the Correction Department are not insurers of inmates and they are not strictly liable for a prisoner's injuries from an assault. Negligence must be established for liability to be imposed on Suffolk County (see, Sanchez v. State, 99 NY2d 247, 754 NYS2d 621, 784 NE2d 675; Harris v. City of New York, 28 AD3d 223, 812 NYS2d 78, app'l den'd 7 NY3d 704, 819 NYS2d 871, 853 NE2d 242; Silvera v. State, 306 AD2d 269, 761 NYS2d 243).

General Municipal Law § 50-e requires that a Notice of Claim be served within ninety days after a tort claim arises against certain public and municipal corporations including the County of Suffolk. This requirement is intended to protect those public and municipal corporations against stale tort claims, and to provide them with an opportunity to timely and efficiently investigate claims (see Matter of Tumm v. Town of Eastchester, 8 AD3d 581, 582, 779 NYS2d 217).

General Municipal Law § 50-e(5) states in relevant part:

In determining whether to grant the extension, the court shall consider, in particular, whether the public corporation or its attorney or its insurance carrier acquired actual knowledge of the essential facts constituting the claim within the time specified in subdivision one or within a reasonable time thereafter. The court shall also consider all other relevant facts and circumstances, including: whether the claimant was an infant, or mentally or physically incapacitated, or died before the time limited for service of the notice of claim; whether the claimant failed to [*5]serve a timely notice of claim by reason of his justifiable reliance upon settlement representations made by an authorized representative of the public corporation or its insurance carrier; whether the claimant in serving a notice of claim made an excusable error concerning the identity of the public corporation against which the claim should be asserted; and whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits.

The statute enumerates various factors relevant to an application for an extension, but it sets one apart from all the others: "the court shall consider, in particular, whether the [public corporation] acquired actual knowledge of the essential facts constituting the claim within the [90-day period] or within a reasonable time thereafter." Other factors, listed under the category "all other relevant facts and circumstances" (General Municipal Law § 50-e[5] ) essentially require a reasonable excuse for the delay and a showing of lack of prejudice to the public corporation in its defense on the merits ( see Matter of Dell'Italia v. Long Is. R.R. Corp., 31 AD3d 758, 759, 820 NYS2d 81; Matter of Sica v. Board of Educ. of City of NY, 226 AD2d 542, 640 NYS2d 610; Matter of Shapiro v. County of Nassau, 208 AD2d 545, 616 NYS2d 786). None of these factors is "necessarily determinative" ( Matter of Dell'Italia v. Long Is. R.R. Corp, supra ).

the notice of claim statute, General Municipal Law § 50-e, is to be applied flexibly. The Court has reiterated that flexibility is key " so as to balance two countervailing interests: on the one hand protecting municipal defendants from stale or frivolous claims, and on the other hand, ensuring that a meritorious case is not dismissed for a ministerial error.' ( Rosenbaum v. City of New York, 24 AD3d 349, 806 NYS2d 543, rev'd on other grounds, 8 NY3d 1, 828 NYS2d 228, 861 NE2d 43). This Court has further held that the statute was not meant to be used as "a sword to cut down honest claims but merely as a shield to protect municipalities against spurious ones." (Lomax v. New York City Health and Hosps. Corp., 262 AD2d 2, 4, 690 NYS2d 548; see also, Matter of Quiroz v. City of New York, 154 AD2d 315, 316, 546 NYS2d 604).