Opinion
# 2019-050-002 Claim No. NONE Motion No. M-93083
01-09-2019
CHRISTOPHER TURNER v. THE STATE OF NEW YORK
Christopher Turner, Pro Se Hon. Letitia James, Attorney General By: Darren Longo, Assistant Attorney General
Synopsis
Movant's late claim motion is denied.
Case information
| UID: | 2019-050-002 |
| Claimant(s): | CHRISTOPHER TURNER |
| Claimant short name: | TURNER |
| 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-93083 |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Christopher Turner, Pro Se |
| Defendant's attorney: | Hon. Letitia James, Attorney General By: Darren Longo, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 9, 2019 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Movant, an inmate who is self-represented, moves to file a late claim for causes of action alleged to have accrued September 12, 2017. The proposed claim alleges assault, medical negligence and New York State Constitutional violations. Defendant argues that the motion must be denied for failure to submit a proposed claim and also due to lack of merit. A proposed claim was, however, submitted to the Court.
Movant's "Affidavit of Service" states that a copy of the claim was mailed to defendant, but the "affidavit" is unsworn
Initially, the motion is not supported by an affidavit as is required by CPLR 2214 and the rules of this Court (see 22 NYCRR 206.8). Movant's unsworn statement submitted in support of his motion does not comply with these requirements and the motion may be denied on this basis alone. Further, movant's statement in support of his application to file a late claim does not address any of the factors which must be considered upon a motion for late claim relief (see Court of Claims Act § 10 [6]).
Movant states that he filed a substantively identical claim on September 13, 2018 (claim No. 131986) and allegedly tried to serve it by placing in the mail on September 20, 2018 but that he never received a returned receipt nor was his account charged for the postage. In any event, the filing and attempted service of this claim were untimely (see Court of Claims Act § 10). The Court notes that the unverified claim filed September 13, 2013 states that a notice of intention to file a claim was properly served on October 30, 2017, which would extend the time within which movant could file his claim. If a notice of intention to file a claim was in fact properly served, then claimant has preserved his claim of medical negligence and does not need late claim relief ( see Court of Claims Act § 10 [6]; CPLR 214, CPLR 214-a). As to any alleged intentional torts, including assault, the time period within which the Court could grant late claim relief has already closed ( see Court of Claims Act § 10 [3]; CPLR 215 [3]).
Based on the foregoing, movant's motion to file a late claim is denied.
January 9, 2019
Hauppauge, New York
STEPHEN J. LYNCH
Judge of the Court of Claims The following papers were read and considered by the Court on movant's motion for late claim relief: 1. Notice of Motion, Affidavit with Exhibits. 2. Affirmation in Opposition.