New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2001-014-539, Claim No. 103797, Motion No. M-63212


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):

S. Michael Nadel
Claimant's attorney:
Pro se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy Susan J. Pogoda, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 8, 2001
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on the defendant's motion to dismiss the claim: Notice of Motion, Affirmation in Support and Exhibits annexed; Affidavit in Opposition.

By Order filed January 2, 2001, (Motion No. M-62274, New York State Court of Claims Decision #2000-014-541[1]), the Court granted the claimant permission to file a late claim. The defendant moves to dismiss the claim that was subsequently served and filed, on the ground that it is not identical to the proposed claim included in the claimant's application.

The proposed claim was less than one page in length, consisting of several sentences in which the claimant alleged that, while he was in the custody of the New York State Department of Correctional Services, he sustained a knee injury which was aggravated when he was transported to a hospital by van instead of being transported by medical staff of the hospital. The claim which was served and filed consists of seven double spaced typewritten pages, in which the incident is described in great detail, some of which is repetitive.

It is the defendant's contention that the claim alleges two causes of action as to which the Court did not grant permission to file a late claim; namely: medical malpractice, with respect to which the late claim application should have included a medical affidavit, which it did not; and intentional tort, with respect to which the late claim application was untimely. While it clearly includes more detail about the underlying incident than did the proposed claim, the claim does not allege any cause of action other than the same negligence alleged in the proposed claim. In addition, the defendant, in support of its motion, has not alleged any prejudice which flows from the service and filing of the more detailed claim.

Rather, the defendant seeks dismissal of the claim based upon language in Iazzetta v State of New York, 105 Misc 2d 567, 570, in which a Judge of this Court stated: "Where, pursuant to subdivision 6 of section 10 of the Court of Claims Act, the Court directs that a claim be filed, it is the proposed claim which was tendered upon the motion which must be filed in haec verba or with such alterations as the Court may have directed [footnote omitted]. Leave of Court must be obtained for any subsequent amendments." While the import of these words could certainly be applied to the situation herein, the holding of that case, where the claimant sought to amend the claim as of right, was that amendment of a claim filed pursuant to Court of Claims Act §10(6) requires the Court's permission, which, in Iazzetta, was granted.

Here, the claimant, who appears pro se, has not sought any relief by way of cross motion. Were the Court to grant the defendant's motion to dismiss the claim in reliance upon the reasoning in Iazzetta v State of New York, supra, the claimant could once again seek permission to file a late claim alleging negligence, since the time within which to do so does not expire for over one year. There is no reason to expect that such an application would, or should, be treated any differently from the first one, which was granted.

In the absence of any prejudice to the defendant under these circumstances, and in the exercise of discretion (Court of Claims Act §10[6]), the defendant's motion is denied.

May 8, 2001
New York, New York

Judge of the Court of Claims

[1]Decisions of the New York State Court of Claims can be found on its website at