Opinion
# 2016-018-704 Claim No. 125067 Motion No. M-87771
02-26-2016
TROY McRAE v. STATE OF NEW YORK
TROY McRAE Pro Se ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General
Synopsis
Claimant's motion to file late appeal denied. The notice of appeal had to be filed on or before August 12, 2015, and this was not done. This Court has no authority to extend the time for Claimant to take an appeal.
Case information
| UID: | 2016-018-704 |
| Claimant(s): | TROY McRAE |
| Claimant short name: | McRAE |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 125067 |
| Motion number(s): | M-87771 |
| Cross-motion number(s): | |
| Judge: | DIANE L. FITZPATRICK |
| Claimant's attorney: | TROY McRAE Pro Se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN Attorney General of the State of New York By: Ray A. Kyles, Esquire Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 26, 2016 |
| City: | Syracuse |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant filed a motion referencing Claim No. 125067 and Motion No. M-86095, seeking "Permission to File a Late Appeal." The Clerk's Office gave this motion number M-87771.
In this notice of motion, Claimant states he seeks to file a late appeal against the State of New York pursuant to the provisions of the Court of Claims Act. Claimant appears to seek to appeal a Decision and Order from May 13, 2015. He proceeds to address some of the factors for consideration on a motion to file a late claim under Court of Claims Act section 10 (6). He asserts his delay in appealing the Decision and Order was because he was moved and lost some of his legal materials. He notes that the State had notice of the essential facts underlying the appeal because its affirmative defense was without merit. The "Notice of Appeal" attached to the motion seeks to appeal an Order of the Court of Claims, Albany County, entered May 13, 2015, denying his motion for summary judgment which was filed December 18, 2014. He seeks to appeal to the Appellate Division, Third Department.
On October 1, 2014, Claimant, acting pro se, filed a claim arising in August 2014, and alleging unlawful imprisonment, "abuse of authority," malicious prosecution, and violation of his "human rights," as a result of, among other things, being retained in the Special Housing Unit (SHU) beyond his release date. Attached to the claim is an affidavit of service indicating the claim was served on September 29, 2014, by regular mail. This affidavit of service was notarized more than two years before the claim arose.
Defendant filed a verified answer to the claim on October 31, 2014, which contains 10 affirmative defenses, including as its first affirmative defense a properly particularized objection to the manner of service of the claim (Court of Claims Act § 11 [c]). Claimant then filed and served a reply to the answer on November 24, 2014.
Claimant brought a motion (M-86095) seeking summary judgment on his claim. The Court, in searching the record on that motion, denied Claimant's motion and granted Defendant summary judgment by Decision and Order dated March 5, 2015, as a result of Claimant's failure to properly serve the claim in accordance with Court of Claims Act section 11 (a).
McRae v State of New York, UID No. 2015-018-614 [Ct Cl, Fitzpatrick, J., March 5, 2015].
Defendant, in opposition to this current motion to file a late appeal argues that this Court lacks jurisdiction to grant the requested relief and that the proper Appellate Division is the Fourth Department. Defendant's opposition reflects that it served a copy of the Decision and Order granting it summary judgment (M-86095) and Notice of Entry on Claimant on July 8, 2015. Claimant served a notice of appeal on the Attorney General on September 8, 2015.
An appeal must be taken within thirty days of service of the Order or judgment with notice of entry (Court of Claims Act § 25). Although Defendant did not indicate how the judgment with Notice of Entry was served upon Claimant, if it was by mail an additional five days is added to the time frame (see CPLR 5513 [5], 2103 [b] [2] [c]). Claimant also does not provide the date he received the judgment with notice of entry from Defendant. However, utilizing the information provided and giving Claimant the benefit of an additional five days for service by mail of the judgment with notice of entry, Claimant needed to serve and file his notice of appeal at the latest by August 12, 2015. He did not do so and this Court has no authority to extend the time for him to take an appeal. Although the Appellate Division has authority in its discretion to permit the late filing of a notice of appeal if timely service of the notice has occurred, or vice-versa, where no timely notice of appeal was filed or served at all, no extension of the time to appeal is permitted (CPLR 5520, see Matter of Ronald M., 188 AD2d 1089 [4th Dept 1992]; Matter of Shannon H., 187 AD2d 1046 [4th Dept 1992]).
Accordingly, Claimant's motion must be DENIED.
February 26, 2016
Syracuse, New York
DIANE L. FITZPATRICK
Judge of the Court of Claims The Court has considered the following in deciding this motion: 1) Notice of Motion. 2) Affidavit of Troy McRae, in support, sworn to May 27, 2015, with exhibits attached thereto. 3) Affirmation of Ray A. Kayles, Esquire, Assistant Attorney General, in opposition.