Opinion
# 2016-038-521 Claim No. None Motion No. M-87413
05-05-2016
JASON SMITH 12A4092 v. STATE OF NEW YORK
JASON SMITH, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Douglas R. Kemp, Assistant Attorney General
Synopsis
Motion for late claim relief denied without prejudice to subsequent motion for same relief. Motion was unsupported by proposed claim, and the notice of intention was patently non-compliant with Court of Claims Act § 11 (b) and thus, could not be considered as the proposed claim.
Case information
| UID: | 2016-038-521 |
| Claimant(s): | JASON SMITH 12A4092 |
| Claimant short name: | SMITH |
| 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-87413 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JASON SMITH, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Douglas R. Kemp, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 5, 2016 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant seeks permission to file a late claim which arises from an incident that allegedly occurred on June 7, 2015. Defendant opposes the motion on the ground that it is not accompanied by a proposed claim, and because the notice of intention that accompanies the claim lacks merit. The motion will be denied without prejudice to a subsequent motion for late claim relief.
Defendant's opposition also asserts, without relevant argument, that claimant's Notice of Motion was neither signed nor notarized (see Kemp Affirmation, ¶ 3). The Court sent defendant's counsel a copy of the signed and notarized documents that were filed with the Court, and provided defendant with the opportunity to submit further comment (see Correspondence of Hon. DeBow, Jan. 20, 2016). Nothing additional has been filed by defendant. --------
Court of Claims Act § 10 (6) requires that a motion for late claim relief be accompanied by a proposed claim that meets the pleading requirements of Court of Claims Act § 11. The failure to comply with this requirement mandates denial of the motion (see Davis v State of New York, 28 AD2d 609, 610 [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., Sept. 9, 2008]). Where the motion is unsupported by a proposed claim, a notice of intention to file a claim may be treated as a proposed claim if it satisfies the pleading requirements of Court of Claims Act § 11 (see Dewitt v State of New York, UID No. 2014-018-508 [Ct Cl, Fitzpatrick, J., Apr. 2, 2014]). The instant motion must be denied for lack of a proposed claim. Further, the motion would not be granted even if the notice of intention to file a claim that accompanies the motion were treated as the proposed claim, for the following reasons.
The basis for this action is stated in its entirety in the notice of intention as follows: "On June 7, 2015 I Jason Smith fell and slipped on the floor in my cell exiting the shower in 11-C-37 cell in Upstate Correctional facility and was rushed to the hospital" (Notice of Intention to File Claim). No additional information or detail is stated. Court of Claims Act § 11 (b) requires that "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained" (Court of Claims Act § 11 [b]). Although the notice of intention states the date when the incident occurred, it does not state the time, nor does it set forth the nature of the claim (i.e. how the incident occurred and the nature of defendant's liability), or the injuries claimed to have been sustained by claimant. As the notice of intention is patently non-compliant with Court of Claims Act § 11 (b), it cannot be treated as the proposed claim in support of this motion for late claim relief. Accordingly, it is
ORDERED, that Motion No. M-87413 is DENIED without prejudice to a subsequent motion for late claim relief.
May 5, 2016
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Motion for Permission to file A Late Claim, sworn to September 9, 2015; (2) Notice of Intention to File Claim, sworn to September 9, 2015; (3) Affirmation of Douglas R. Kemp, AAG, in Opposition, dated October 21, 2015, with Exhibit A; (4) Correspondence of Hon. W. Brooks DeBow, dated January 20, 2016.