New York State Court of Claims

New York State Court of Claims

BARTHROP v. THE STATE OF NEW YORK, #2001-013-022, Claim No. 104214, Motion No. M-63741


Claimant's motion, which seeks to amend his Notice of Intention is denied, as the Court does not have the power to permit such an amendment.

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: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 19, 2001

Official citation:

Appellate results:

See also (multicaptioned case)


On August 15, 2001, the following papers were read on Claimant's motion for permission to amend his "Complaint of Notice of Intention:"
1. Notice of Motion and Supporting Affidavit of Curtis Barthrop, pro se ("Barthrop Affidavit")

2. Affirmation in Opposition of Reynolds E. Hahn, Esq., Assistant Attorney General ("Hahn Affirmation")

3. Response Affirmation [sic] of Curtis Barthrop, pro se ("Barthrop Responsive Affidavit")

4. Filed papers: Claim; Answer

The original claim in this action, which was filed in May 2001, alleges that on January 1, 2001, Claimant, an inmate of Orleans Correctional Facility, was directed to mop and buff the floor in front of the north entrance to the facility's mess hall. Claimant objected to this direction, contending that they did not usually buff the floors during messy winter weather, and a disciplinary report was issued. According to the claim, Claimant was handcuffed and then assaulted by correction officers. After initially being refused medical treatment at the facility, he was later taken to Medina Memorial Hospital, where he received seven sutures above his right eyebrow.

In February 2001, Claimant had served a Notice of Intention to File a Claim which stated, in substantive part, the following: "Claimant was handcuffed and being escorted to the facility SHU when in the hands of C.O. Schihl, Claimant fell and cause injury to his right eye, requiring 7 stitches" (Claim - attachment).

Although the instant motion was considered, both by the Clerk's office and by Defendant, to be a motion to amend the claim, it is evident from Claimant's affidavits that he is actually seeking to amend the Notice of Intention so that its allegations match those of the subsequent claim. According to Claimant, the Notice of Intention contained erroneous information because the Law Library Clerk who helped him compose that document misinterpreted his account of events. Claimant apparently understands that the timeliness of this claim rests on service of the Notice of Intention in February, because the claim was filed and served more than ninety days after the incident (Court of Claims Act §10[3]). Defendant objects to the motion only on the ground that no proposed amended claim was attached to the motion papers.

The Notice of Intention is not a pleading (see, CPLR 3011; (Murray v State of New York, 202 App Div 597) and therefore this Court does not have authority to permit amendment. Amendment would be inappropriate in any event, because the purpose of a Notice of Intention is "to provide the State with fair and timely notice by bringing the general nature of the claim to its attention" (Schwartzberg v State of New York, 121 Misc 2d 1095, 1099-1100, affd 98 AD2d 902) and its primary effect is to meet the time limits imposed by the Court of Claims Act, allowing a more developed claim to be served and filed at a later date. A Notice of Intention that alleges, at the most, negligence cannot provide timely notice that an action based on allegations of intentional assault will be filed.

In his responsive affidavit, Claimant asks that the motion to amend "be liberally construed as a ‘request for leave to file a late claim'" (Barthrop Responsive Affidavit, ¶3). Defendant has not yet moved to dismiss this action on the ground that the Notice of Intention was inadequate to preserve Claimant's right to commence the action described in his claim. Such a motion can be anticipated, however, and based on the marked difference between the Notice of Intention and the claim, it would undoubtedly be granted. If that occurred, Claimant's only recourse would be to move for permission to file a late claim.

It is not possible, however, to construe the instant motion as one for permission to file an untimely claim (Court of Claims Act §10[6]). In order to bring such a motion, Claimant must address the six statutory factors: 1) whether the delay in filing the claim was excusable; 2) whether the State had notice of the essential facts constituting the claim; 3) whether the State had an opportunity to investigate the circumstances underlying the claim; 4) whether the claim appears to be meritorious; 5) whether the failure to file or serve a timely claim or serve a timely notice of intention resulted in substantial prejudice to the State; and 6) whether the Claimant has another available remedy. Defendant must also be given an opportunity to address those same factors, an opportunity which this motion does not provide. Claimant may wish to consider bringing such a motion in the future.

Claimant's motion to amend the claim, which is in fact a motion to amend the Notice of Intention, is denied as improper.

October 19, 2001
Rochester, New York

Judge of the Court of Claims