Opinion
# 2014-040-019 Motion No. M-84742
04-18-2014
DUANE MODEST v. THE STATE OF NEW YORK
Duane Modest, Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG
Synopsis
CCA § 10(6) motion to file a claim late denied as proposed claim fails to meet the particularity requirements of CCA § 11(b).
Case information
| UID: | 2014-040-019 |
| Claimant(s): | DUANE MODEST |
| Claimant short name: | MODEST |
| 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-84742 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Duane Modest, Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Michael T. Krenrich, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
For the reasons set forth below, the application of pro se Movant, Duane Modest, to serve and file a late claim pursuant to Court of Claims Act § 10(6), is denied without prejudice.
Court of Claims Act § 10(6) contains two preliminary requirements that must be satisfied in order for the Court to review the six enumerated factors set forth in the statute. The first is that the underlying Civil Practice Law and Rules (CPLR) statute of limitations for asserting a like claim against a citizen of New York State has not yet expired. Here, Movant has asserted in his motion papers that an incident accrued on October 10, 2013 at Franklin Correctional Facility located in Malone, New York, when he was found guilty at a disciplinary hearing and placed in the Special Housing Unit for 10 days. Movant asserts that Defendant was negligent (CPLR § 214[5], a three-year Statute of Limitations). The Court concludes that, based upon the information provided in the proposed Claim, the statute of limitations has not yet expired.
The second requirement is that "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application" (Court of Claims Act § 10[6]). The failure to satisfy this prerequisite is a basis, in and of itself, for denial of the motion (Davis v State of New York, 28 AD2d 609 [3d Dept 1967]; Ponce v State of New York, UID No. 2013-040-043 [Ct Cl, McCarthy, J., June 14, 2013]; Nestel v State of New York, Claim No. None, Motion No. M-71607 [Ct Cl, Mignano, J., May 31, 2006]; Harrell v State of New York, UID No. 2003-005-511, [Ct Cl, Corbett, J., Apr. 3, 2003].
Court of Claims Act § 11(b) provides that the Claim "shall state the time when and the place where the claim arose, the nature of same, the items of damage or injuries claimed to have been sustained … ." Here, Movant asserts the date when the proposed Claim arose. The place where the alleged incident took place is described as Franklin Correctional Facility. Movant asserts only that he was denied justice. He does not state how he was denied justice. He does not state that the misbehavior report or the disciplinary hearing were held in violation of any of the rules and regulations of the Department of Corrections and Community Supervision. "The requirements in section 11 (b) are 'substantive conditions upon the State's waiver of sovereign immunity' (Lepkowski v State of New York, 1 NY3d 201, 207 [2003]), and noncompliance renders a claim 'jurisdictionally defective for nonconfomity' (id. at 209; see Kolnacki v State of New York, 8 NY3d 277, 281 [2007], rearg denied 8 NY3d 994 [2007])" (Wilson v State of New York, 61 AD3d 1367, 1368 [4th Dept 2009]).
Here, the Court concludes that the proposed Claim is jurisdictionally defective as it fails to state how Movant's rights were violated with sufficient particularity to satisfy Court of Claims Act § 11(b). On this basis, the Motion for Permission to File a Late Claim is denied, without prejudice.
April 18, 2014
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Movant's motion to file a late claim pursuant to Section 10(6) of the Court of Claims Act:
Papers Numbered
Notice of Motion, affidavit of service, letter,
affidavits in support and attachments 1
Affirmation in Opposition & exhibits attached 2
Letter from Movant 3