New York State Court of Claims

New York State Court of Claims

RUSSELL v. THE STATE OF NEW YORK, #2001-005-528, Claim No. NONE, Motion No. M-63600


Claimant's motion for permission to file a late claim 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:
David Russell, Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney General
Third-party defendant's attorney:

Signature date:
September 6, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On July 11, 2001, the following papers, numbered 1 to 4, were read on motion by Claimant for permission to file a late claim:
  1. Notice of Motion/Affidavit with Annexed Notice of Intention and Claim
2, 3, 4 Claimant's Affidavit of Service, Notice of Motion and Affirmation in Support of Motion

Upon the foregoing papers, this motion is denied.

Claimant seeks permission to file a late claim pursuant to Court of Claims Act §10(6) relating to an incident that purportedly occurred on February 2, 2000.

Claimant's papers were returned to him on at least two occasions by the Chief Clerk's office because they were inadequate, including the absence of an affidavit of service of the motion papers upon the Defendant. Given the absence of any opposition by the Defendant, a rare occurrence, successful service of the motion remains questionable.

Nonetheless, Claimant's moving papers (his notice of motion and affidavit are seemingly merged into one document), addresses the statutory factors of §10(6) as described below. Without describing the incident, he avers that it would not be time-barred under article 2 of the CPLR. He says the delay is excusable because he only recently discovered that there was an injury report in his medical records from February 2, 2000, at Cayuga Correctional Facility, and thus he would have some proof to support his accusations. He says that the Defendant had notice of the essential facts constituting the claim because of the said injury report. He says he has no other remedy.

Claimant appends a verified Notice of Intention to file a Claim and a verified (proposed) Claim to his motion papers. It is only by reading them that the underlying incident is described at all. In essence it is alleged that at the Auburn Correctional Facility one Sergeant Cox and another sergeant assaulted, punched, and choked unconscious the Claimant on February 2, 2000, at approximately 8:00 a.m., while he was still handcuffed, and then placed him on a transport bus to his scheduled destination of Cayuga Correctional Facility.

The only plausible cause of action which can be discerned from the moving papers sounds in assault and battery by the correction officers at Auburn Correctional Facility. I have examined Claimant's various papers, and note the following. Claimant's motion paper, dated December 29, 2001 (sic, probably meant 2000) was received on January 29, 2001 but returned by the Clerk's Office on February 1, 2001, and again on May 9, 2001, and finally accepted for filing on June 11, 2001. There are various "verification" dates on the papers, including December 27, 2000, and February 14, 2001.

The moving papers here are so convoluted, and the motion is so untimely, that it must be denied. By letter dated June 12, 2001, the Clerk, relying upon a purported affidavit of service, calendared this motion before me for July 11, 2001. By letter dated June 20, 2001, Claimant supplied another purported affidavit of service sworn to on June 20, 2001, alleging service on June 20, 2001 upon the Defendant and mailing to the Clerk. He also appended a document entitled "Affirmation (sic) in Support of Motion" sworn to on June 6, 2001, in which he ‘affirms' that he "served upon the Attorney General's Office" a Notice of Intention to file claim on January 29, 2001.

Summarizing the confusing assertions in a light most favorable to Claimant and in consideration of his pro se status, while he may have tried to bring this motion by service of papers on January 29, 2001, it appears from his Affirmation in Support dated June 6, 2001, that he only served the Defendant with a Notice of Intention on January 29, 2001, not a motion for permission to file a late claim. The affidavits of service sworn to onJune 6 and June 20, 2001, are the only ones which aver service of motion papers upon the Defendant. Thus it appears that this motion was not commenced until purported service of the motion papers upon the Defendant on June 6, 2001.

CPLR 215(3) establishes a one year statute of limitations for actions sounding in assault and battery. Since the underlying incident allegedly occurred on February 2, 2000, service of the motion papers herein on June 6, 2001, is far beyond the one year period from the accrual of the cause of action, and thus Claimant is unable to demonstrate that the proposed claim herein would not be time barred as violative of CPLR 215(3). It therefore is not necessary to address the statutory factors of §10(6).

Purported service of a Notice of Intention on January 29, 2001, does not overcome this deficiency. First, even if it was intended to be part of a late claim motion, the only authority under §10(6) is permission to file a late claim, not a late Notice of Intention. The Court of Claims Act has strict jurisdictional precepts, and here, papers possibly served on January 29, 2001, at the very precipice of the expiration of CPLR 215(3), without so much as an affidavit of service alleging service of motion papers on that date, cannot preserve an untimely cause of action sounding in assault and battery.

Accordingly, the motion must be and hereby is denied in its entirety.

September 6, 2001
Rochester, New York

Judge of the Court of Claims