Opinion
# 2011-015-260 Motion No. M-79861
09-27-2011
VINCENT S. SMITH v. THE STATE OF NEW YORK
Synopsis
Motion for late claim relief was denied where Court was unable to determine whether or not the State was served with the motion and movant failed to address the statutory factors necessary to warrant such relief. Case information
UID: 2011-015-260 Claimant(s): VINCENT S. SMITH Claimant short name: SMITH 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-79861 Cross-motion number(s): Judge: FRANCIS T. COLLINS Claimant's attorney: Vincent S. Smith, Pro Se Honorable Eric T. Schneiderman, Attorney Defendant's attorney: General No Appearance Third-party defendant's attorney: Signature date: September 27, 2011 City: Saratoga Springs Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Movant, an inmate proceeding pro se, seeks late claim relief pursuant to Court of Claims Act § 10 (6). The proposed claim, which alleges movant was the victim of an assault and battery by correction officers at Downstate Correctional Facility, allegedly accrued on May 18, 2010 and the motion was filed in the Office of the Clerk of the Court of Claims on May 17, 2011.
Subdivision 6 of section 10 of the Court of Claims Act permits this Court, if the applicable Statute of Limitations set forth in article 2 of the CPLR has not expired, to allow the filing of a late claim upon consideration of the following 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."
The first issue for determination upon a late claim motion is whether the application is timely. Subdivision 6 of section 10 requires that a motion to file a late claim be made "before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." A cause of action for assault is governed by the one-year limitations period set forth in CPLR 215 [3] (Hernandez v State of New York, 39 AD3d 709 [2007]). So long as a motion is served within the statutory time period, the application to late file the claim is timely (Thompson v State of New York, 258 App Div 758 [1939]; Jenkins v State of New York, 119 Misc 2d 144 [1983]; CPLR 2211).Here, however, movant's affidavit of service fails to reflect the name or address of the entity served with the motion and the Court is therefore unable to determine the timeliness of the motion.
It has also been held that the service requirements of Court of Claims Act § 11 (a) are inapplicable to an action for late claim relief under Court of Claims Act § 10 (6) (Sciarabba v State of New York, 152 AD2d 229 [1989]).
Notably, the State of New York failed to appear on this motion.
Moreover, the claimant failed to address any of the statutory factors necessary to decide the motion and the mere submission of a proposed claim fails to suffice for this purpose.
Based on the foregoing, the motion is denied.
September 27, 2011
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:1. Notice of motion "sworn to" May 5, 2011 with exhibits.