New York State Court of Claims

New York State Court of Claims

BACKMAN v. STATE OF NEW YORK, #2002-005-532, Claim No. 102647, Motion No. M-64827


Synopsis


Defendant's motion to dismiss the claim is granted.

Case Information

UID:
2002-005-532
Claimant(s):
PRINCE BACKMAN
Claimant short name:
BACKMAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
102647
Motion number(s):
M-64827
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Prince Backman,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Timothy P. Mulvey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 22, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On April 17, 2002, the following papers, numbered 1 to 5, were read on motion by Defendant for an order dismissing the claim:
1, 2 Notice of Motion, Affirmation and Exhibits Annexed
  1. Opposing Papers
3, 4, 5 Filed Papers: Claim; Amended Claim; Order in Motion No. M-62091

Upon the foregoing papers, this motion is granted.

In this motion, Defendant seeks dismissal of the claim because it contends that Claimant is precluded by an earlier order of this court and lacks jurisdiction over the Defendant. A brief chronology will prove instructive. By order filed on November 14, 2000, in Motion No. M-62091, I granted Defendant's motion to dismiss the instant claim, unless within 30 days of service thereof, the "Claimant serves and files an amended claim in which the paragraphs are separately stated and numbered, the cause(s) of action are separately alleged and the specific acts or omissions are clearly and concisely stated in consecutively numbered paragraphs with each paragraph, as far as practicable, containing a single allegation (CPLR 3013 and 3014)."

On December 27, 2000, the Chief Clerk received and filed an "Amended Claim" maintaining the claim number herein. The Defendant affirms under oath that said amended claim was never served upon it, as my earlier order had required. There is a note appended to the "amended claim" which says: "To Court of Claim and atty General, Dec. 22, 2000, In (sic) forward you a revised copy of my claim, which is now numbered on each paragraph ..." and apparently signed by Claimant without any notarization. There is no affidavit or other proof of service (22 NYCRR 206.5[a]). Given Defendant's sworn assertion that it was never served with said amended claim, and more significantly, given Claimant's default on this motion, the failure to serve the amended claim as I had required is undisputed. Indeed this entire result should not come as any surprise to Claimant, because the Defendant never served or filed an Answer, further indicative of a failure to have served the amended claim. This motion was served upon Claimant by mail at Attica Correctional Facility (Attica) on March 5, 2002. As recently as February 14, 2002, my chambers wrote to Claimant, also at his Attica address. Thus, since the motion papers were received, and with no request for an adjournment, and with no opposition to the relief sought, the motion must be granted and the claim must be dismissed.

Even if I were not dismissing the claim for the failure to have served the amended claim as I had directed, the "amended" claim would have been subject to dismissal in any event. Despite my specific directions in the earlier order, Claimant did nothing more than make an exact photocopy of the original claim and added numbers and letters to certain of the paragraphs. He did nothing to separately state and number all the paragraphs, he failed to separately allege distinct causes of action, and, indeed, had he served the Defendant with the amended claim that he actually filed, a motion to dismiss for the failure to comply with my earlier order would have been granted because, as I noted in my earlier order the claim "does not state its allegations with sufficient particularity to permit the Defendant to properly provide an answer."

Thus the claim is dismissed and, accordingly, the trial herein scheduled for June 18, 2002, at Auburn is canceled.


April 22, 2002
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims