Opinion
# 2020-040-028 Motion No. M-95328
08-31-2020
WELLINGTON GARCIA v. THE STATE OF NEW YORK
Wellington Garcia, 19R0349, Pro Se LETITIA JAMES Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG
Synopsis
Pro se Movant's Motion for permission to serve and file a late Claim pursuant to CCA § 10(6) denied as Movant submitted a Notice of Intention not a proposed Claim, and that the Notice of Intention does not meet the requirements of a Claim.
Case information
| UID: | 2020-040-028 |
| Claimant(s): | WELLINGTON GARCIA |
| Claimant short name: | GARCIA |
| 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-95328 |
| Cross-motion number(s): | |
| Judge: | CHRISTOPHER J. McCARTHY |
| Claimant's attorney: | Wellington Garcia, 19R0349, Pro Se |
|---|---|
| Defendant's attorney: | LETITIA JAMES Attorney General of the State of New York By: Douglas R. Kemp, Esq., AAG |
| Third-party defendant's attorney: | |
| Signature date: | August 31, 2020 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
For the reasons set forth below, the application of pro se Movant, Wellington Garcia, 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) provides only for the late filing of a Claim, not a Notice of Intention to File a Claim (Holmes v State of N.Y., Rosewell Park Cancer Inst. Corp., 5 Misc 3d 446 [Ct Cl 2004]; DeHart v State of New York, 92 Misc 2d 631 [Ct Cl 1977]). While Movant seeks permission to file a late Claim, he has submitted a "Notice of Intention to File a Claim." In order for a Notice of Intention to be considered a Claim, it must contain all the elements of a Claim as set forth in Court of Claims Act § 11(b). The statute requires that the Claim "state the time when and place where the claim arose, the nature of the same, the items of damage or the injuries claimed to have been sustained" and, except in certain cases, the total sum claimed.
The Notice of Intention asserts that the Claim accrued on May 31, 2019 while Movant was incarcerated at Bare Hill Correctional Facility (hereinafter, "Bare Hill"). Movant asserts that he was walking in the "Annex Yard" when he saw a soccer ball roll past him. He asserts that he jogged over to get the ball for the men playing soccer with it, when his leg got caught in a big hole in the ground that caused him to trip and break his leg (Notice of Intention, unnumbered ¶ 4).
Movant's Motion was adjourned without date by the Court on March 16, 2020 because of the coronavirus public health emergency. By Daily Report, dated May 20, 2020, the Court noted that it appeared that it was in receipt of Movant's Motion papers and Defendant's Opposition papers. Therefore, the Court established a new Return Date of July 22, 2020 should Movant have wished to Reply to Defendant's Opposition. The Court further noted that, if the new Return Date was problematic for either side, they should contact he Court with a proposed new date. Neither party responded to the Court's Daily Report.
The Court finds and concludes that the proposed Notice of Intention does not meet the requirements of a Claim, as the Notice of Intention fails to comply with Court of Claims Act § 11(b) by failing to include an adequate description of the incident alleged therein. Movant alleges only that he stepped "in a big hole in the ground" in the Annex Yard at Bare Hill. However, he does not provide any specifics as to the size of the hole, where in the yard the hole was located, if Movant had seen the hole previously, how the Defendant was responsible for the presence of the hole, and what the nature of the proposed Claim is.
As Movant has not submitted a proposed Claim, the Motion for Permission to File a Late Claim is denied without prejudice.
August 31, 2020
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 Court of Claims Act § 10(6): Papers Numbered Notice of Motion, Motion & Exhibits attached 1 Affirmation in Opposition & Exhibit attached 2