New York State Court of Claims

New York State Court of Claims

CALABRO v. NEW YORK STATE POLICE, #2002-010-045, Claim No. 101624, Motion No. M-65522


Synopsis


Claimant's application for leave to file a late claim is denied.

Case Information

UID:
2002-010-045
Claimant(s):
BERNARD CALABRO
Claimant short name:
CALABRO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101624
Motion number(s):
M-65522
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant's attorney:
EDWARD THOMAS MC CORMACK, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
September 20, 2002
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-2 were read and considered by the Court on claimant's motion: 1) to set aside this Court's Decision and Order dated May 20, 2002 which dismissed Claim No. 101624, and 2) for leave to file a late claim:
Notice of Motion, Attorney's Affirmation, Claimant's Supporting Affidavit and Exhibits.....................................................................................................................1

Defendant's Affirmation in Opposition.....................................................................2

By Decision and Order of this Court dated May 20, 2002, defendant's unopposed motion to dismiss was granted and Claim No. 101624 was dismissed on the basis of, inter alia, failure to state a cause of action and untimeliness. There is no legal basis upon which claimant's application to set aside this decision should be granted; accordingly that branch of claimant's motion is DENIED.

Claimant also seeks leave to file a late claim alleging false arrest and assault by New York State Police on February 3, 1999.

Court of Claims Act § 10(6) provides that a motion for leave to file a late claim, must be brought "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" [emphasis added]. Here, the applicable time period is one year (CPLR §215). Claimant's failure to serve and file a late claim application before the expiration of the statute of limitations precludes the Court from considering claimant's application for leave to file a late claim (see Miller v State of New York, 283 AD2d 830) because "[t]he failure to file such application within the proscribed time period creates a jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief" (Bergmann v State of New York, 281 AD2d 731, 733). Thus, that branch of claimant's application is DENIED.


September 20, 2002
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims