New York State Court of Claims

New York State Court of Claims

CRUZ v. THE STATE OF NEW YORK, #2001-013-018, , Motion No. M-63599


A hearing to aid in the disposition of a motion is ordered where it appears that Claimant's attorneys failed to file a claim after receiving permission to late file, but informed Claimant that the action had been commenced.

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:
Defendant's attorney:
Attorney General of the State of New York
BY: WENDY E. MORCIO, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 19, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On July 18, 2001, the following papers were read on Claimant's motion for permission to file an untimely claim:
1. Notice of Motion and Supporting of Affidavit of Jorge Cruz, pro se ("Cruz Affidavit")

2. Affidavit in Opposition of Wendy E. Morcio, Esq. ("Morcio Affidavit")

3. Filed Papers: Order filed April 18, 1995 (M-50901, McMahon, J.)

For the reasons set forth below, I am directing that a hearing be held to aid in the disposition of this motion.

Claimant, appearing pro se, has moved for permission to late file a claim that arose on December 18, 1991, when he was injured after falling on ice in a recreation yard of Wende Correctional Facility. The proposed claim alleges that the State is responsible for his injuries because of its negligence in failing to clear snow and ice from the yard and failing to take other precautions, such as sanding and salting, that would have made the yard safe for those using the area. As a result of the fall, it is alleged, Claimant sustained an injury to the femoral head in his left hip and required a total hip replacement.

In the ordinary course, this motion should be denied, as Section 10(6) of the Court of Claims Act permits a motion for permission to late file to be considered by the Court as long as commencement of a like action against a citizen would not be barred by the applicable CPLR article 2 statute of limitations. Claims seeking compensation for personal injury based on allegations of negligence must be commenced within three years of the day of their accrual (CPLR 214), and it has been almost ten years since that event in this instance.

There appear to have been sufficient irregularities in this particular situation, however, to warrant a hearing that is to be attended by the Claimant, counsel for Defendant, and the attorneys who represented Claimant on an earlier, successful motion for permission to late file an identical claim. The only factual background is that presented by Claimant in his affidavit and accompanying exhibits, and those sources present the following sequence of events.

After his injury, Claimant timely filed and served a Notice of Intention (Cruz Affidavit, Exhibit A) and began trying to find an attorney to represent him. It was not until 1994 that an attorney was retained, however, and because no claim had been filed within two years of the date of accrual (see, Court of Claims Act §10[3]), the original Notice of Intention had not been effective in preserving Claimant's right to commence the action without court permission. In December 1994, Attorney Thomas A. Stickle of New York City moved on behalf of Claimant for permission to file an untimely claim. This motion was granted by former Judge Thomas P. McMahon, with the direction that filing and service of the claim "be accomplished in compliance with all applicable statutes and court rules (see, e.g., Court of Claims Act §11; CPLR 307; 22 NYCRR 206.5, 206.6) within sixty (60) days of receipt of a file-stamped copy of this Order." Judge McMahon's decision was filed on April 18, 1995. No claim was ever filed, however.

Copies of correspondence included in the motion papers (Cruz Affidavit, Exhibit D) establish that the attorney-client relationship between Claimant and the law offices of Thomas A. Stickel continued after the motion decision was issued and that Claimant believed, during most of this time, that his claim had been filed and his case was proceeding. In May 1995, Robert S. Bonelli, Esq., of the Stickel firm, wrote to Claimant returning certain medical and legal documents and indicating that the court had ruled in his favor. Claimant responded by providing updated information about his physical condition and questioning whether the attorneys had decided on the amount they were going to ask for in the claim. In June 1995, Mr. Bonelli replied, stating that they had not yet determined a settlement amount, but that they would be in a better position to determine a settlement range "[a]fter further discovery and evaluation." In September 1995, Claimant wrote to Mr. Bonelli to ask about the status of the case and, at that time he indicated that he wished to execute a power of attorney so that his brother-in-law could act on his behalf "in the event that something happens to me while in prison." In December 1995, Mr. Bonelli forwarded a power of attorney form to Claimant.

During the following year, Claimant wrote to Mr. Bonelli on several occasions requesting information on the status of the case, requesting that the power of attorney be changed to another individual, asking for a copy of the proposed claim that had been submitted with the motion to late file, and, in October, asking for a copy of the complaint (sic) that had been filed in the Court of Claims. In connection with this last request, Claimant stated, "I have never received a copy of this complaint, of which I feel I am entitled." Claimant does not attach a copy of the response that he received from the law firm, but on November 4, 1996, he wrote to thank Mr. Bonelli "for mailing me a copy of the claim submitted with the Court of Claims" and inquiring whether it would be too late to incorporate a cause of action for malpractice in connection with surgery performed on him. The next letter in the group supplied by Claimant is dated December 1998 and is addressed to Mr. Stickel, informing him of a change of address and asking why there had been no response to his letters or attempts to telephone the firm.

During March, June and July 2000, Claimant continued to write to Mr. Stickle, complaining of the law firm's lack of response and asking for a response and an update on the status, indicating at one point that he had contacted the Court of Claims and been told that no claim was pending. In January 2001, Claimant wrote to both Mr. Stickle and to the Chief Clerk of the Court of Claims, this time providing a reference number -- #92145749 -- which he refers to as a claim number. (I note that this number is not consistent with the numbering system used by the Court of Claims.) It appears that he received no response from Mr. Stickle, but in March 2001, the Chief Clerk wrote to confirm that no claim had been filed on Claimant's behalf and referred him to the Office of the Attorney General in the event he was attempting to get information about a Notice of Intention. Claimant commenced the instant motion shortly after receipt of the Clerk's letter.

In light of the rather extraordinary, and troubling, sequence of events as outlined by Claimant, I have determined that it is necessary for all of the interested parties to appear, in person, for a hearing on this matter. This hearing will be conducted in the Court of Claims court room located in the State Office Building, 207 East Genesee Street, Utica, New York on October 25, 2001 at 10:00 a.m. All parties are hereby ordered to appear at that time and are further ordered to bring all documentary records they have relevant to the events described above.

In addition to Claimant and the Attorney General, the Chief Clerk is directed to serve copies of this Interim Order on the following:

Thomas A. Stickel, Esq.

910 Grand Concourse

Bronx, New York 10451

Robert S. Bonelli, Esq.

3 Executive Boulevard

Yonkers, New York 10701

September 19, 2001
Rochester, New York

Judge of the Court of Claims