New York State Court of Claims

New York State Court of Claims

SIMPSON v. THE STATE OF NEW YORK, #2002-015-276, Claim No. NONE, Motion No. M-65082


Inmate late claim application denied for failure to provide a proposed claim and failure to present factual details from which Court could determine potential merit of the claim.

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:
Akeem Simpson, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 24, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The movant's application for late claim relief pursuant to Court of Claims Act § 10 (6) is denied. The motion papers consist of a notice of motion dated April 5, 2002 captioned "MOTION FOR PERMISSION TO FILE A LATE CLAIM", an affidavit in support sworn to on April 11, 2002, and an affidavit of service upon the Attorney General and the Clerk of the Court. Movant did not submit a proposed claim with his papers.

Assistant Attorney General Joel Marmelstein opposed the motion by affirmation dated April 26, 2002 in which he quotes the following mandate from Court of Claims Act § 10 (6) with regard to late claim applications: "The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application."

Movant filed a sworn statement designated a "Sur Reply Affirmation in Opposition" dated June 4, 2002 which was received by the Court on June 17, 2002 more than a month after the designated return date. Since movant did not request an adjournment of the motion's return date his belated reply affidavit will not be considered.

As to the underlying facts movant merely states the following in the unsworn notice of motion: "[t]he incident underlying this claim occurred on December 12th, 2001 . . . the medical personnel located in the prison infirmary were aware of my illness and failed to provide treatment which is the subject matter of this claim." In his affidavit, the only submission sworn to before a notary, movant addressed primarily the statutory requirements to be considered by the Court on a late claim application. As to the facts underlying his claim he therein alleged only that "[t]he incident underlying this claim occurred on December 12, 2001, whereas claimant suffered injuries while incarcerated in Marcy Correctional Facility." No additional facts supporting a claim against the defendant were therein alleged.

Given the lack of factual detail it is impossible for this Court to discern from the submitted papers whether any alleged underlying claim has merit. Likewise the defendant is unable to address the issue of merit or to present argument with regard to the State's opportunity to investigate, notice of the essential facts or possible prejudice resulting from movant's delay. As a result, the motion must be denied (see, Morrison v State of New York, Ct Cl, May 9, 2002 [Claim No. None, Motion No. M-64339], Fitzpatrick, J., unreported; Rogers v State of New York, Ct Cl, October 16, 2001 [Claim No. None, Motion No. M-63626], Sise, J., unreported).

July 24, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated April 5, 2002;
  2. Affidavit of Akeem Simpson sworn to April 11, 2002;
  3. Affirmation of Joel L. Marmelstein dated April 26, 2002;

Submitted but not Considered:

  1. Sur-Reply affirmation of Akeem Simpson sworn to June 4, 2002.