New York State Court of Claims

New York State Court of Claims

LAVOIE v. THE STATE OF NEW YORK, #2000-019-536, Claim No. 102165, Motion No. M-61680


State's motion to dismiss due to Claimant's alleged failure to comply with prior Court Orders and CCA 11 (b) is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Eileen E. Bryant, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
October 20, 2000

Official citation:

Appellate results:

See also (multicaptioned case)


This is a motion to dismiss filed by the State of New York (hereinafter "State") pursuant to CPLR 3211. The Court has not received any papers in opposition to this motion from or on behalf of Claimant.

The following papers where considered by the Court in connection with this motion:
  1. ORDER, LEBOUS, J., filed November 1, 1999, Claim No. None, Motion No. M-60157.
  2. AMENDED ORDER, LEBOUS, J., filed March 14, 2000, Claim No. None, Motion No. M-60157.
  3. Claim No. 102165, filed March 22, 2000.
  4. Notice of Motion No. M-61680, dated May 1, 2000, and filed May 1, 2000.
  5. Affirmation of Eileen E. Bryant, AAG, in support of motion, dated May 1, 2000, with attached exhibits.
The State's first ground for dismissal is that Claimant failed to comply with this Court's prior Orders. By way of background, this Court previously granted Claimant's initial motion for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). (Lavoie v State of New York, Ct Cl., November 1, 1999, Lebous, J., Motion No. M-60157 [hereinafter "Order #1"). As part of said application, Claimant submitted a proposed claim setting forth a bailment cause of action relating to an allegedly missing "Radio Shack AM/FM/Cassette/Clock Radio" valued at $39.95. Order #1 directed Claimant to serve and file the claim within a stated period of time. Prior to the expiration of said time period, Claimant submitted a letter requesting an extension of time to comply with Order #1 to which the State had no objection. Accordingly, this Court issued an Amended Order extending the time for filing and service of the claim to August 1, 2000. (Lavoie v State of New York, Ct Cl., March 14, 2000, Lebous, J., Motion No. M-60157). Claimant ultimately filed and served his permitted claim within the time constraints.

By way of this motion, the State argues this new claim "[d]eparts significantly from the proposed claim and is indeed a different claim from the proposed claim before the Court with respect to Motion No. M-60157." (Affirmation of Eileen E. Bryant, AAG, ¶ 9). Although upon initial review the prior proposed claim and the new claim appear to be different, a closer examination reveals they are one and the same claim. The new claim states, in part, that "[a]ll facts pertaining to this claim being made part of the record pursuant to Motion No. M-60157, Claimant hereby files this claim with permission to file a late claim and therefore stands on the papers and information already filed...." (Claim, ¶ 2). In this Court's view, this statement is an attempt to incorporate the allegations of the prior proposed claim into the new claim. Although the new claim does go on to increase the amount of damages requested, the underlying bailment cause of action was not altered in any way. This new language will be deemed the equivalent of a request to increase the ad damnum from $39.95 to $258.45.[1] (CPLR 3025 [b]). Despite its objection, the State has not indicated how it is prejudiced, if at all, by such a change. In short, the Court disagrees with the State's characterization of this new claim as different from the prior proposed claim and finds no prejudice to the State in allowing Claimant to increase his ad damnum clause. As such, the State's motion to dismiss for failure to comply with this Court's prior Orders is denied.

The State's second ground for dismissal is that this Claim fails to provide sufficient detail as required by CCA 11 (b). The Court notes that this pro se Claimant elected to incorporate the proposed claim rather than repeat the allegations contained therein. However, the sufficiency of the allegations in the proposed claim are not in dispute and, as such, the Court finds the incorporation thereof into this Claim to adhere to the requirements of CCA 11 (b). (Grande v State of New York, 160 Misc 2d 383, 385). Moreover, in the interest of judicial economy, the Court will not direct Claimant to draft yet another claim and deems the allegations of the proposed claim to be incorporated into the new claim.

Accordingly, for the reasons stated above, it is ordered that the State's motion to dismiss, Motion No. M-61680, is DENIED.

October 20, 2000
Binghamton, New York

Judge of the Court of Claims

Claimant bases this increase on the costs he has incurred in pursuing this matter, as well as his loss of "privilage" [sic] (e.g., enjoyment) of use of the missing radio. (Affirmation of Eileen E. Bryant, AAG, Exhibit D). The merit of these additional damages will be left for trial.