New York State Court of Claims

New York State Court of Claims

BROWN v. THE STATE OF NEW YORK, #2001-011-566, Claim Nos. 103226, 103227, 103228, 103229, 103230, 103231, 103232, Motion No. M-63543


Synopsis


Claimant's motion for permission to file a late claim in which Claimant alleges that correctional offices employed by the State committed an intentional tort sounding in battery, is denied.

Case Information

UID:
2001-011-566
Claimant(s):
FRANK BROWN
Claimant short name:
BROWN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103226, 103227, 103228, 103229, 103230, 103231, 103232
Motion number(s):
M-63543
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Frank Brown, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Eileen E. Bryant, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 1, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


This is a motion for permission to file a late claim in which Claimant alleges thatcorrection officers employed by the State committed an intentional tort sounding in battery.

Court of Claims Act §10(6) provides that "a claimant who fails to file or serve upon the attorney general a claim or notice of intention ... within the time limited therein for filing or serving upon the attorney general the claim or notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."

In the papers submitted in support of the motion, Claimant indicates that the motion relates to a previously filed claim: number 103226. No proposed claim was provided but in the filed claim he alleges that on September 10, 1999, he and his cell mate were subject to excessive force, including punching and kicking by two officers at Upstate Correctional Facility.

Under CPLR §215, an action to recover damages for battery must be commenced within one year. The claim is alleged to have accrued on September 10, 1999. Under §10(6), the motion for permission to late file the claim must have been brought within a year of that time. The motion was made on May, 8, 2001, when it was served on the defendant (CPLR 2211). Therefore, the motion was made after the statute of limitations had expired and under Court of Claims Act §10(6), the court is without jurisdiction to grant the relief sought. Accordingly, the motion is denied.


August 1, 2001
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims



Papers Submitted:

  1. Notice of Motion dated April 25, 2001
  2. Affidavit in Support of Frank Brown sworn to the 27th day of April, 2001
  3. Affirmation in Opposition of Eileen E. Bryant, Esq. dated June 18, 2001
  4. Letter received from Frank Brown dated June 20, 2001