Opinion
# 2017-038-558 Claim No. None Motion No. M-90470
09-07-2017
ELLIOT MAY #10A4108 v. STATE OF NEW YORK
ELLIOT MAY, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Jeane L. Strickland Smith, Assistant Attorney General
Synopsis
Motion for late claim relief denied without prejudice. Motion was not accompanied by proposed claim.
Case information
| UID: | 2017-038-558 |
| Claimant(s): | ELLIOT MAY #10A4108 |
| Claimant short name: | MAY |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-90470 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | ELLIOT MAY, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Jeane L. Strickland Smith, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | September 7, 2017 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant previously filed claim number 129570, which was dismissed on jurisdictional grounds because the claim was improperly served (see May v State of New York, UID No. 2017-038-557 [Ct Cl, DeBow, J., dated Sep. 6, 2017]). Claimant moves under Court of Claims Act § 10 (6) and CPLR § 205 (a) to recommence that timely filed claim. Defendant opposes the motion. For the reasons that follow, the motion will be denied without prejudice.
A motion seeking permission to file and serve a late claim under Court of Claims Act § 10 (6), must be accompanied by a proposed claim that meets the pleading requirements of Court of Claims Act § 11. The failure to comply with this requirement is a jurisdictional defect that requires denial of the motion (see Davis v State of New York, 28 AD2d 609 [3d Dept 1967]; Di Bacco v State of New York, 57 Misc 2d 832, 834 [Ct Cl 1968]; Thompson v State of New York, UID No. 2008-044-577 [Ct Cl, Schaewe, J., Sep. 9, 2008]). Claimant has not appended a proposed claim to his motion, and thus, that part of his motion seeking last claim relief pursuant to Court of Claims Act § 10 (6) must be denied. Even if claimant were to have appended a copy of claim number 129570 or another proposed claim, claimant failed to make any argument or showing as to any of the six statutory factors that the Court is required to consider under Court of Claims Act § 10 (6).
Court of Claims Act § 10 (6) requires the Court to consider, among other factors, "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy." --------
To the extent that a claim in the Court of Claims may be recommenced pursuant to CPLR § 205(a) ( but see Gurley v State of New York, 173 Misc.2d 87, 90 [Ct Cl 1997] ["ameliorative provisions of CPLR 205(a) . . . are not available" in the Court of Claims]), resort to motion practice is not necessary, as that section permits a litigant without court order to recommence an action that was not terminated on specified grounds.
Accordingly, it is
ORDERED, that motion number M-90470 is DENIED without prejudice to a motion pursuant to Court of Claims Act § 10 (6).
September 7, 2017
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Notice of Motion, dated May 2, 2017; (2) Affidavit of Elliot May in Support, sworn to May 2, 2017; (3) Affirmation of Jeane L. Strickland Smith, AAG, in opposition, dated June 9, 2017, with Exhibit A.