New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2001-010-048, Claim No. 103955, Motion No. M-63491


Synopsis


Claimant's motion for leave to file a late claim is denied as moot as the Notice of Intention was timely filed.

Case Information

UID:
2001-010-048
Claimant(s):
JERRY PEREZ
Claimant short name:
PEREZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103955
Motion number(s):
M-63491
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
JERRY PEREZPro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: Elyse Angelico, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 6, 2001
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on claimant's motion for leave to file a late claim:
Notice of Motion, Claimant's Supporting Affidavit and Exhibit[1]..............................1

Attorney's Affirmation in Opposition......................................................................2

Filed Papers: Claim, Answer

Claimant, an inmate proceeding pro se, brings this instant motion for leave to file a late claim alleging loss of unspecified personal property valued at $88.81 during a facility transfer. It is noted, however, that claimant did indeed timely file a claim. Court of Claims Act, Section 10(9) provides:

A claim of any inmate in custody of the department of correctional services for recovery of damages for injury to or loss of personal property may not be filed unless and until the inmate has exhausted the personal property claims administrative remedy, established for inmates by the department. Such claim must be filed and served within one hundred and twenty days after the date on which the inmate has exhausted such remedy. [emphasis added]

According to the Inmate Claim Form (Claimant's Ex.), his facility claim was denied on December 27, 2000. Within the requisite 120 days as set forth in Court of Claims Act § 10(9),[2] (Claimant's Ex.). on March 12, 2001, claimant served a Notice of Intention upon the Attorney General's Office (Answer, ¶ 2) and filed a claim with the Court (Filed Claim).

Defendant's answer asserts an affirmative defense of lack of jurisdiction based upon untimely service of the Notice of Intention and untimely filing of the claim[3] (Answer, ¶ 5). Specifically, defendant asserts that the claim accrued on October 31, 2000 and that the Notice of Intention was served on March 12, 2001, more that 90 days "as required by the Court of Claims Act" (Id.). Defendant's affirmative defense has no basis in law and is deemed stricken.

Accordingly, claimant's motion is DENIED as moot.


July 6, 2001
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]Claimant refers to exhibits and a proposed claim, however, claimant failed to include such papers.

[2] It is also noted that the Inmate Claim Form states:

[a] claim may be filed in the NYS Court of Claims. Your claim must be filed and served within 120 days of the date of this final determination, as required by law


[3]Defendant does not raise any defense regarding the service of the claim; thus, any defense to this issue is deemed waived. (Court of Claims Act § 11[c]).