Opinion
# 2015-038-545 Claim No. NONE Motion No. M-86467
08-03-2015
ANTHONY BARNES v. THE STATE OF NEW YORK
ANTHONY BARNES, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General
Synopsis
Application to treat notice of intention as claim pursuant to Court of Claim Act § 10 (8) denied where request was not made on motion and notice of intention did not state the items of damage and the sum claimed.
Case information
| UID: | 2015-038-545 |
| Claimant(s): | ANTHONY BARNES |
| Claimant short name: | BARNES |
| 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-86467 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | ANTHONY BARNES, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Paul F. Cagino, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 3, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, requests permission to treat a Notice of Intention to File a Claim as the claim itself. The notice of intention to file a claim submitted by claimant asserts that on the evening of January 16, 2013, another inmate was placed in claimant's cell, and it asserts that claimant's life and health was in danger and placed at risk and that a determination by medical staff that claimant should be "medically housed by myself and a [sic] medical bottom bunk" due to injuries claimant allegedly sustained in a recent altercation with staff was violated (see Notice of Intention to File Claim). Claimant's papers include an affidavit of service of the notice of intention on the Attorney General, which is sworn to February 11, 2013. By correspondence dated March 5, 2015 to the Clerk of the Court of Claims, claimant requests that his notice of intention be treat as a claim. Although defendant does not argue that the notice of intention was properly and timely served on the Attorney General, defendant opposes claimant's request to treat the notice of intention as the claim on various grounds.
The Court of Claims Act provides that:
"A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."
(Court of Claims Act § 10 [8] [a] [emphasis added]). Defendant argues that claimant's request should not be granted because his application is procedurally defective because it lacks a notice of motion and supporting affidavit, because the notice of intention states neither the damages sustained by claimant nor the sum sought by him, that this Court lacks subject matter jurisdiction to the extent that the notice of intention seeks equitable relief, and because defendant's determination of claimant's cell assignment is a discretionary decision for which defendant is immune from liability. Claimant's request will be denied, for the following reasons.
As quoted above, the Court may not grant a request to treat the notice of intention to file a claim as the claim unless certain conditions are met. Two of those conditions are not satisfied by claimant's application: it has not been made upon motion, and the notice of intention does not contain facts sufficient to constitute a claim.
First, a motion is made upon notice to the non-movant, and the "notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor" (CPLR 2214 [a]; see also 22 NYCRR § 206.8 [a] ["no motion shall be filed with the court unless a notice of motion is served and filed, with proof of service, with the motion papers"]). Claimant's application, which was filed with the Clerk of the Court on March 9, 2015 and treated as a motion, is correspondence that is denominated by claimant as a "Request for Permission To Treat Notice of Intention as Actual Claim." The request is not presented in the form of a notice of motion (see 22 NYCRR § 206.8 [d]), and it does not identify claimant's request as a motion, nor does it specify a time and place that the application/motion is to be heard. Court of Claims Act § 10(8)(a) "specifically requires a motion on notice. As claimant's request is contained in a letter, it is not properly before the court and may not be addressed" (Smalls v State of New York, UID No. 2011-029-062 [Ct Cl, Mignano, J., Dec. 22, 2011]).
Moreover, even if claimant's application was properly before the Court as a motion on notice, it does not contain facts sufficient to state a claim. As relevant here, Court of Claims Act § 11 (b) requires that:
"The claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained . . . The notice of intention to file a claim shall set forth the same matters except that the items of damage or injuries and the sum claimed need not be stated."
However, although this provision does not require "the items of damage or injuries and the sum claimed" to be stated in a notice of intention, in order to treat a notice of intention as a claim under Court of Claims Act § 10 (8) (a), the notice of intention must "contain[] facts sufficient to constitute a claim" (id.). The failure to include in the notice of intention a recitation of the items of damage precludes the conversion of the notice of intention to a claim under Court of Claims Act § 10 (8) (a) (see Tulger v State of New York, UID No. 2013-015-414 [Ct Cl, Collins, J., Apr. 3, 2013]).
Thus, because claimant's request pursuant to Court of Claims Act § 10 (8) (a) is not a motion made on notice, and because the notice of intention to file a claim lacks facts sufficient to constitute a claim, the request to treat the notice of intention as the claim cannot be granted. Defendant's remaining arguments need not be discussed. Accordingly, it is
ORDERED, that claimant's request (M-86467) is DENIED.
August 3, 2015
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Request For Permission To Treat Notice Of Intention as Actual Claim, dated March 5, 2015; (2) Notice of Intention to File Claim, dated February 18, 2013 with verification dated February 11, 2013; (3) Affidavit of Service of Notion of Intention, sworn to February 11, 2013; (4) Affirmation of Paul F. Cagino, AAG, in Opposition, dated May 5, 2015.