New York State Court of Claims

New York State Court of Claims

WALKER v. THE STATE OF NEW YORK, #2000-001-039, Claim No. 101558, Motion No. M-61611


Synopsis


Claimant's motion to for an order setting aside a prior order of this Court is denied.

Case Information

UID:
2000-001-039
Claimant(s):
MILTON WALKER
Claimant short name:
WALKER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101558
Motion number(s):
M-61611
Cross-motion number(s):

Judge:
Susan Phillips Read
Claimant's attorney:
Milton Walker, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Joel L. Marmelstein, Esq., Assistant Attorney General, Of Counsel
Third-party defendant's attorney:

Signature date:
August 2, 2000
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant's motion for an order setting aside a prior order of this Court: Claim No. 101558; Order dated December 23, 1999; Notice of Motion, sworn to April 2 and filed April 28, 2000; "Affirmation" in Support of Milton Walker, pro se, undated and filed April 28, 2000; and Letter of Joel L. Marmelstein, Esq., AAG, dated May 16 and received May 17, 2000.

Claimant Milton Walker ("claimant") alleges that on March 31, 1998 he was administered improper medication by a member of the medical staff at Riverview Correctional Facility and suffered injuries as a result. The claim was filed with the Court on December 9, 1999, unaccompanied by either a filing fee or an application pursuant to CPLR 1101 (f) for reduction of the filing fee.[1]

In view of these deficiencies, the Court issued an order dated December 23, 1999 directing the Clerk to close the file on this claim unless, within thirty days, claimant applied for reduction of the filing fee by completing and filing the form affidavit enclosed with the order. Claimant did not apply for reduction of the filing fee within the thirty-day time period; therefore, Claim No. 101558 was marked closed on January 31, 2000.

Claimant now moves to set aside the Court's December 23, 1999 "judgement," which would restore this claim and afford claimant additional time in which to comply with the filing fee requirement, either by paying the fee or applying for a reduction. Claimant states that he is neither familiar with nor versed in law work; has not previously attempted to file legal documents; has no one to look to for assistance; and "if I had full knowledge of all the particulars I would have complied with-out [sic] any delay in submitting the Affidavit in Support of Application Pursuant to CPLR 1101 (f)" ("Affirmation" in Support of Milton Walker, pro se, undated and filed April 28, 2000, p 3). Defendant State of New York ("defendant" or "the State") has not responded to the motion other than by letter stating that the Attorney-General was never served with the claim in this matter (Letter of Joel L. Marmelstein, Esq., AAG, dated May 16 and received May 17, 2000).

While recognizing the challenges facing pro se litigants, the Court declines to exercise its discretion to grant the relief sought. The Court in its December 23, 1999 order clearly informed claimant of the simple steps he had to take in order to preserve his claim and facilitated his taking of these steps by providing him with a blank form affidavit. Moreover, claimant does not dispute defense counsel's statement that the Attorney-General was never served with the claim in Claim No. 101558, which renders it vulnerable to swift dismissal if revived.

Based on the foregoing, the Court denies claimant's motion. If claimant wishes to pursue his claim against the State arising from the events of March 31, 1998, he may move pursuant to and in compliance with the requirements of Court of Claims Act § 10 (6) for permission to file a late claim.

August 2, 2000
Albany, New York

HON. SUSAN PHILLIPS READ
Judge of the Court of Claims




[1]
According to claimant, he served the Attorney-General with a notice of intention on June 20, 1998 (see, Claim No. 101558, ¶ 4). Because the alleged negligence occurred on March 31, 1998 and the notice of intention--assuming it was properly served--preserved claimant's right to commence an action for two years from the date of accrual (Court of Claims Act § 10 [3]), claimant's time to file and serve a new claim asserting this cause of action had expired by the time he made this motion.