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,
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
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.