Correspondence dated April 27, 2001, from Peter O. Einset, Esq. 4
Reply Affirmation 5
In this claim, claimant asserted causes of action based upon negligence,
intentional infliction of emotional distress, and a violation of State
Constitutional rights, based upon events which occurred on April 29, 1998. On
that date, claimant and his son were traveling on the New York State Thruway
when he was detained by a New York State Police trooper pursuant to an
outstanding warrant for claimant's arrest, which had been issued on April 28,
1998 by the Canastota Village Court.
This claim was served on the Attorney General by regular, first class mail on
June 24, 1998. Claimant subsequently served the identical claim upon the
Attorney General on August 17, 1998, this time by certified mail, return receipt
Defendant had previously brought a motion
seeking an order dismissing the claim based upon improper and untimely service
of the claim, as well as the failure of claimant to state a cause of action.
By a Decision and Order dated March 30, 2001, this Court found that service of
the claim by regular, first class mail on June 24, 1998 was improper and not in
accordance with statute, and also found that the second service on August 17,
1998 was untimely. Based upon these defects in the service of the claim, this
Court dismissed the claim.
In this motion, claimant does not contest any of the factual findings made by
the Court in the prior motion, but requests that the Court consider additional
evidence in an attempt to establish an accrual date of July 28, 1998, rather
than April 29, 1998 as set forth in the filed claim.
On a motion to renew under CPLR 2221, a party is required to show new facts to
support the motion or a justifiable excuse for the failure to have placed such
facts before the court (Brooks v Inn at Saratoga Assn., 188 AD2d 921).
The new evidence submitted with this motion consists of a proposed amended
claim (which admittedly was never served or filed), and office notes of
claimant's attorney indicating that claimant was informed on July 28, 1998 that
the warrant from the Canastota Village Court was still open and outstanding. It
is claimant's position that since the warrant was still outstanding on July 28,
1998 (assuming, for the moment that the information provided to claimant was
correct), then the service of the claim by certified mail, return receipt
requested, on August 17, 1998 was timely.
The entire claim for damages contained in Claim No. 98503, however, relates to
the events which occurred on April 29, 1998 when claimant was detained by New
York State Police officers. The fact that the warrant may have remained
outstanding beyond the date of April 29, 1998 bears no relationship whatsoever
to the claimant's claim for damages that he allegedly suffered on that date.
Claimant, although categorizing this claim as a motion to renew, in effect is
therefore attempting to amend his claim.
Although leave to amend pleadings should be freely given (see, McCaskey,
Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755),
such amendments can be permitted only where the original claim was timely served
and filed. In other words, a jurisdictional defect may not be cured by the
amendment of the original claim (Grande v State of New York, 160 Misc 2d
383; Ferrer v State of New York, 172 Misc 2d 1).
In this case, the original claim, which was dismissed for improper and untimely
service, cannot be resuscitated by claimant's attempt to utilize an accrual date
which has no connection whatsoever to the acts complained of in the claim.
Accordingly, it is
ORDERED, that Motion No. M-63453 is hereby DENIED.