Court Accepts Late Notice of Claim From Inmate

, New York Law Journal

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A Court of Claims judge has allowed a prison inmate to file a late claim against the state for its alleged failure to prevent an attack against him by two other prisoners.

Judge Christopher McCarthy (See Profile) ruled in Van De Vivier v. State of New York, M-84070, that Jack Van De Vivier's case may proceed on the grounds that prison officials had notice that the inmate faced threats of an imminent attack by fellow inmates but did not give him special protection.

Van De Vivier claims his legs, feet and his bed were set on fire at Dannemora state prison in February 2013 by two inmates who were members of a gang in retaliation for Van De Vivier's intervention to prevent the murder of a corrections officer.

Van De Vivier missed the deadline to file a notice of claim within 90 days of suffering his injuries on Feb. 4. But McCarthy said he is empowered by Court of Claims Act §10(6) to accept a late claim if it is filed within the three-year statute of limitations, which Van De Vivier's claim was.

McCarthy ruled that Van De Vivier's claim at the initial stage of litigation meets the most important of the six factors he must weigh when accepting a late claim under §10(6), that it has the "appearance of merit."

Van De Vivier, 57, is serving a 16-to-25-year sentence on conspiracy and drug charges. He is now in Coxsackie state prison.

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