The following papers numbered 1-3 were read and considered by the Court on movant’s late claim application: Notice of Motion, Attorney’s Supporting Affirmation and Exhibits 1 Attorney’s Affirmation in Opposition and Exhibit 2 Attorney’s Reply Affirmation 3 DECISION AND ORDER Movant brings this late claim application pursuant to Court of Claims Act §10 (6). The proposed claim alleges the following (Ex. A). In January 2023, during movant’s incarceration at Fishkill Correctional Facility (Fishkill), movant was housed in the C-center dorm of the “Network Program,” referred to as an “honor dorm” (id., 7). The honor dorm maintained a relatively peaceful environment with little conflict until early 2023 when the New York State Department of Corrections and Community Supervision (DOCCS) began housing active gang members in the honor dorm, which led to unrest and fights (id. at 9). In the morning of January 17, 2023, the 15 to 20 residents of the honor dorm who did not have work assignments, were transferred to the gym for recreation. Between 9:00 a.m. and 9:30 a.m., movant saw two incarcerated individuals begin a physical altercation with a third incarcerated individual. The three incarcerated individuals were removed from the area by DOCCS staff. Approximately 30 minutes later, the third incarcerated individual, who had been the subject of the earlier physical altercation, returned to the gym “with an associate” and they “ran up to the gang members” and attacked them with metal chairs (id. at 15). Dozens of correction officers swarmed the gym to address the incident. The correction officers yelled for the uninvolved incarcerated individuals to stand up and face the wall with their hands up (id. at 16). Movant, who was at a distance of approximately 50 feet from where the incident involving the metal chairs began, immediately complied with the correction officers’ instructions (id. at 17) A male correction officer then grabbed movant by the shoulder and aggressively pushed movant to the left, causing movant to lose his balance (id. at 18). Movant remained calm and compliant, despite the unnecessary use of force. Seconds later, without warning, six to seven correction officers rushed movant from behind and assaulted him. Movant did not resist the “brutal assault” and pulled himself into the fetal position to protect his face and head from the blows (id. at 19). After movant was handcuffed, the correction officers continued to attack movant. When movant fell to the floor, the correction officers kneed and kicked movant in his sides. The correction officers then picked up movant and carried him to the lobby outside the gym, near the water fountains, and continued “the brutal and unprompted assault” upon movant (id. at 21). During the fast moving attack, movant heard a correction officer, who was wearing a white shirt, instruct the correction officers to “beat” movant (id. at 22). Movant believed that the white shirt indicated that the correction officer was a supervisor (id.). The correction officers heeded the supervisor’s command and beat movant for an additional 15 to 20 seconds. The correction officers then lifted movant to a standing position and screamed at him. The correction officers escorted movant to the infirmary as they taunted and hurled threats at him and warned him that if he said one word about the incident then “things would get ‘really ugly’ ” (id. at 24). Struggling to breathe from his injuries, movant waited approximately 45 minutes before he was examined by the nurse who asked movant what happened to him. In response to the nurse’s inquiry, one of the correction officers jumped in and responded that movant was “ caught in the crossfire” of the incident in the gym (id. at 25). The nurse did not conduct a full physical examination of movant. She did not have movant remove his shirt nor did she photograph the bruises that he had all over his body. The result was an incomplete injury report that did not reflect the extent of movant’s serious injuries. Movant remained in the waiting area with at least four correction officers and approximately a dozen incarcerated individuals that were involved in the incident involving the metal chairs. Movant continued to complain of significant pain throughout his body and repeatedly requested to be seen by a doctor. Movant’s requests were rebuffed. Movant began to panic and his breathing became more painful and difficult. His cuffs were excruciatingly tight. The correction officers laughed and mocked movant and asked him if he was too old for “[gang] banging?” (id. at 29). Movant was sent back to his unit without any medical treatment and directed to sign up for sick call (id. at 30). The following day, on January 18, 2023, at approximately 5:30 p.m., several correction officers stormed movant’s unit and forced all the incarcerated individuals to go into the hallway and place their hands up against the wall. This was a near impossible task for movant due to the severity of his injuries (id. at 32); however he complied out of fear of being beaten. Movant held his hands up over his head for an excruciating 15 minutes (id. at 33). The incarcerated individuals were then forced to walk down five flights of stairs and across a yard to the messhall where they remained for 90 minutes until they were taken back to the unit. During this time movant was in pain, but he did not request assistance because he feared being beaten by the correction officers (id. at 34). Upon returning to the unit, the unit had been ransacked. Property was stolen, destroyed and missing. There were holes in the walls and there were broken shelves (id. at 35). Days after the attack upon claimant on January 17, 2023, movant was called down for a non-emergency sick call. At that time, the nurse informed movant that there was no medical report in his file from January 17, 2023 (id. at 36). Movant was examined and the nurse told the monitoring correction officer that movant needed to be seen by his provider immediately. On January 25, 2023, eight days after the January 17, 2023 attack upon movant, movant received diagnostic imaging which revealed fractures to his 9th and 10th ribs (id. at 37). Movant alleges that the State had ample notice of the January 17, 2023 attack upon him by the correction officers and that the State failed to identify the correction officers responsible for the attack and to reprimand them for their unlawful actions (id. at 38). Movant seeks damages for the negligent and intentional conduct of the State and its employees at Fishkill who “brutally assaulted” movant and used excessive force, without cause or legal justification, which resulted in movant’s injuries (id. at 2). Movant also alleges that the correction officers threatened him with retaliation and acted to cover up their wrongdoing by interfering with movant’s medical assessment (id. at 5). Movant’s injuries allegedly resulted from the negligence, recklessness, deliberate indifference and intentional conduct of the State and its employees in the operation, maintenance, supervision and control of DOCCS (id. at 3). Movant also alleges that the State failed to train, supervise, discipline and retain employees who are fit for employment and that the State failed to adequately investigate the claims of misconduct (id. at 5, 6). Additionally, movant alleges that his federal and state constitutional rights were violated and that his unspecified statutory rights were violated (id. at 6, 39). As a result of the alleged attack, movant has allegedly sustained physical, emotional, and psychological injuries, pain and suffering, and potentially permanent deformities (id. at 39). Movant submits numerous exhibits in support of his late claim application (Exs. B-F). Exhibit B is a copy of the Unusual Incident Report dated March 7, 2023 regarding the incident in the gym involving numerous incarcerated individuals on January 17, 2023 and the subsequent investigation. The Unusual Incident Report notes that movant was identified as a possible participant in the gym incident and that the medical unit reported that on January 17, 2023 movant sustained “A 2 INCH LINEAR REDDENED AREA NOTED TO LEFT FRONT ABDOMINAL AREA, REDDENED AREA NEAR LEFT EAR AND A 3/4 INCH X 1 1/8 INCH REDDENED AREA TO LEFT NECK” (id. at pp 2-3). An addendum to the Unusual Incident Report notes that on February 20, 2023, movant was still complaining of pain in his torso area and was sent to an outside hospital where it was determined that he had a fracture to the right 9th and 10th ribs (id.). Exhibit C is a to-from memorandum from Sergeant Garnot to Lieutenant Sawyer, dated January 17, 2023, regarding the gym incident that occurred on January 17, 2023 and involved numerous incarcerated individuals, the subsequent investigation, which was ongoing, the search of movant’s unit due to him being identified as a possible suspect in the gym incident, and the injuries movant sustained on January 17, 2023. The memorandum notes that movant sustained “a 2 inch linear reddened area noted to left front abdominal area, reddened area near left ear and a 3/4 inch x 1 1/8 inch reddened area to left neck” (Ex. C, pp 1-2). Exhibit D is movant’s grievance dated February 2, 2023. It alleges that on January 17, 2023 at approximately 10:00 a.m., in the gym, movant was handcuffed and beaten by a “group of correction officers and supervisors.” Movant was taken to the infirmary, remained in cuffs, and complained of being in pain for seven hours. The grievance provides in pertinent part: “NO INCIDENT REPORT WAS FILED AND MY INJURY REPORT AND MEDICAL DIAGNOSIS VANISHED. I WAS THREATENED WITH VIOLENCE TO STAY QUIET” (Ex. D). Exhibit E consists of a witness statement from two incarcerated individuals. The first statement is signed by William Richardson and is dated January 19, 2023. Richardson’s statement provides that on January 17, 2023, he saw a group of correction officers assault movant in the gym as movant yelled in pain. Richardson observed movant later that day on the unit “having difficulty moving” and “it took him a lot of effort to lift his shirt to show me his bruised torso. His back and rib area was badly bruised [sic]” (Ex. E). The following day, the unit was ransacked and the correction officers broke and took items that the incarcerated individuals were permitted to have. The second statement is signed by George Guadalupe and is dated February 16, 2023 (id.). Guadalupe’s statement provides that on January 17, 2023, he witnessed a group of correction officers assault movant in the gym. Movant was punched and kicked repeatedly while he was handcuffed and he pleaded, to no avail, for the correction officers to stop. A supervisor told the group of correction officers to beat movant. Guadalupe observed movant handcuffed in the infirmary several hours after the incident and movant said that he had not been treated by medical for his injuries. Exhibit F is movant’s affirmation dated January 17, 20241 (Ex. F). It details the events that occurred on January 17, 2023 and the injuries that movant endured. It also states that movant was interviewed by correction officers several times “about what happened” and that he told them exactly what happened to him (id. at 26). Movant was not offered any “additional medical care” and he did not believe that the assault was reported after his interviews (id.). Movant was threatened by the clinic correction officer to “shut up and not say a word” and that if movant did not stay quiet, he would “‘get more’” (id. at 20). Due to the threats from several correction officers and movant’s request for surveillance footage of the incident, which was not provided to him, movant did not immediately seek legal action and he remains concerned for his safety because he is still housed in Fishkill (id. at 37-42). The State opposes movant’s application on numerous grounds which are addressed in the following analysis. Analysis The determination of a motion for leave to file a late claim requires the Court to consider, among other relevant factors, the six factors set forth in subdivision 6 of section 10 of the Court of Claims Act: (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 to be meritorious; (5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and (6) whether the movant has another available remedy. The presence or absence of any one factor is not determinative and the list of factors is not exhaustive (see Bay Terrace Coop. Section IV v. New York State Employees’ Retirement Sys. Policemen’s & Firemen’s Retirement Sys., 55 NY2d 979 [1982]). With regard to the first factor, movant argues that he has a reasonable excuse for not timely commencing an action based upon his fear of retaliation from the correction officers who attacked him and threatened him “with violence to stay quiet” (Ex. D). Additionally, movant maintains that the correction officers continued to be employed at Fishkill while movant remained housed at Fishkill. The State argues that movant’s purported fear of retaliation is not a reasonable excuse in the instant case because movant’s fear is belied by the fact that movant filed a grievance on February 2, 2023, 16 days after the alleged attack, wherein movant asserted that he was threatened with violence to stay quiet and an investigation was conducted of movant’s allegations (id.; Ex. 1). Every correction officer involved in the gym incident was interviewed as part of the investigation of movant’s grievance and movant indicated that he had not been threatened since the alleged attack upon him (Ex. 1, pp 4, 15-18). The grievance was denied on February 13, 2023 and movant filed an administrative appeal shortly thereafter, which was within the 90 days that movant had to timely commence an action in the Court of Claims (id. at 1). Thus, the State maintains that movant could have served a notice of intention or served and filed a claim within 90 days of the alleged attack upon him. In reply, movant argues that he filed the grievance precisely because of his fear of retaliation from the correction officers that had threatened him and that when the correction officers were not reprimanded after movant’s grievance was filed, movant commenced an action in the Court of Claims. In addressing whether movant has demonstrated a reasonable excuse for his delay, the Court notes that the proposed claim alleges that during movant’s walk to the infirmary after the alleged attack, correction officers hurled threats at movant if he reported the incident and that another correction officer jumped in and responded to the nurse’s inquiry about movant’s injuries by stating that movant was “caught in the crossfire” of a fight in the gym (Ex. A,
