New York State Court of Claims

New York State Court of Claims

DE TORRES v. THE STATE OF NEW YORK, #2002-011-573, Claim No. 104663, Motion No. M-65157


Synopsis


Defendant's motion to dismiss the claim is denied.

Case Information

UID:
2002-011-573
Claimant(s):
ETTORE DE TORRES
Claimant short name:
DE TORRES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104663
Motion number(s):
M-65157
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Ettore DeTorres, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Eileen E. Bryant, Esq.,Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 26, 2002
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has moved to dismiss the original claim on the basis that it does not comply

with the requirements of Court of Claims Act §11 and to dismiss the amended claim on the basis that claimant failed to serve and file the amended claim within the time set by the court when it granted leave to amend.

In a prior Decision and Order, the court denied a motion by claimant for summary judgment, denied the cross-motion by defendant to dismiss and granted claimant leave to amend the claim (DeTorres v State of New York, Claim No.104663, M-64340, CM-64486, CM-64449, February 26, 2002, McNamara, J.). In denying the cross-motion to dismiss, the court determined that the failure to list each and every item of lost property in the claim, which alleges a cause of action sounding in bailment, was not a jurisdictional defect. Nonetheless, the court granted the motion seeking leave to amend the claim so as to allow claimant to include a list of the items. The court directed claimant to serve and file the amended claim within thirty days of service upon him of a file-stamped copy of the order. Service of the order was accomplished on March 1, 2002 but claimant did not serve the amended claim until April 3, 2002.

Inasmuch as the court has already determined that the failure to list the allegedly lost items in the claim is not a jurisdictional defect, no basis exists for dismissal of the original claim. And, although the purpose of permitting amendment of the claim was to provide more information to defendant, the motion to strike the amended pleading should be granted as claimant served the amended claim three days beyond the time established by the court.

The motion to dismiss the original claim is denied. Service of the amended claim on April 3, 2002 was not authorized by the court and therefore, the amended pleading is a nullity.


August 26, 2002
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims


Papers Submitted:

1. Notice of Motion dated May 3, 2002
2. Affirmation in Support of Eileen E. Bryant, Esq. dated May 3, 2002 with exhibits annexed
3. Affidavit in Opposition of Ettore DeTorres sworn to the 14th day of May, 2002 with exhibits annexed