Opinion
# 2018-015-153 Motion No. M-92204
08-22-2018
LEIN FIGUEROA, 03-A-0465 v. THE STATE OF NEW YORK
Lein Figueroa, Pro Se Honorable Barbara D. Underwood, Attorney General By: Paul F. Cagino, Esq., Assistant Attorney General
Synopsis
Motion for late claim relief was adjourned to permit service of the motion upon defendant which claimed it had not been served.
Case information
| UID: | 2018-015-153 |
| Claimant(s): | LEIN FIGUEROA, 03-A-0465 |
| Claimant short name: | FIGUEROA |
| 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-92204 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Lein Figueroa, Pro Se |
| Defendant's attorney: | Honorable Barbara D. Underwood, Attorney General By: Paul F. Cagino, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | August 22, 2018 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, proceeding pro se, seeks permission to file and serve a late claim pursuant to Court of Claims Act § 10 (6).
Movant, an inmate in the custody of the Department of Corrections and Community Supervision, alleges he was assaulted by another inmate at Great Meadow Correctional Facility on October 22, 2017. In support of his motion for leave to file and serve a late claim, movant submits a proposed claim which alleges the respondent failed to protect him from an attack by another inmate, despite having knowledge of a substantial risk of assault because he was "labeled a High Ranking member of the Latin Kings" (Exhibit A, ¶ 4). The proposed claim also asserts the respondent was negligent in not requiring inmates entering the main yard to pass through a metal detector during daytime hours (Exhibit A, ¶¶ 5, 6).
In opposition to the motion, the State submits an affidavit of Debra L. Mantell, Legal Assistant II in the Albany Office of the Attorney General, in which she states that it is the business practice of the Attorney General's office to record the receipt of motions in their digital data-case management system and that a search of this database disclosed no record of the Attorney General's Office having received the instant motion. However, the Affidavit of Service filed with the motion reflects service on April 3, 2018, and movant submitted a copy of this same affidavit in reply.
Inasmuch as the State has either not received or misplaced the motion papers, the Court will adjourn the motion to October 17, 2018 to allow movant additional time to serve (or re-serve) the motion upon the Office of the Attorney General.
Accordingly, the motion is adjourned to October 17, 2018 and movant is directed to serve (or re-serve as the case may be) the motion on the Office of the Attorney General within the time permitted by CPLR 2214. Movant is directed to file an affidavit of service of the motion in the Office of the Chief Clerk of the Court of Claims at least eight days prior to the return date of the motion.
August 22, 2018
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
Papers Considered:
1. Notice of motion, sworn to April 3, 2018;
2. Affidavit in support, sworn to April 3, 2018, with Exhibit A;
3. Affirmation in opposition, dated May 11, 2018, with Exhibit A;
4. Claimant's letter in reply dated May 17, 2018 with Affidavit of Service, sworn to April 3, 2018.