New York State Court of Claims

New York State Court of Claims

ROSARIO v. THE STATE OF NEW YORK, #2002-015-305, Claim No. 105771, Motion No. M-65748


Claimant's submission on motion seeking reconsideration of earlier motion is not entitled to judicial cognizance since such submissions includes neither a notice of motion nor a supporting affidavit.

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:
Julio Rosario, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: G. Lawrence Dillon, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 19, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion seeking reconsideration of the Court's prior decision and order (Motion No. M-65104) dated July 24, 2002 which dismissed the claim for lack of jurisdiction is denied. The claim filed March 18, 2002 seeks $100,000.00 in damages for personal injuries sustained at 9:00 p.m. on November 4, 2001 in an alleged attack upon claimant by an unidentified inmate at an unspecified correctional facility. In its earlier decision and order dismissing the claim the Court found that the notice of intention to file a claim served by claimant upon the Attorney General's office lacked specific allegations of negligence on the part of the defendant and was not verified as required by law. The Court held that the claimant's failure to assert specific allegations of negligence and the lack of a verification as required by Court of Claims Act § 11 (b) rendered the notice of intention defective and deprived the claimant of the additional time to serve and file a verified claim permitted in Court of Claims Act § 10 (3). As a result, the Court further found that the March 18, 2002 service of the claim upon the Attorney General was untimely when measured from November 4, 2001, the alleged date of accrual. Moreover, while the claim was verified it was served upon the Attorney General by ordinary mail, a method of service not authorized by Court of Claims Act § 11 (a). For these reasons, the Court determined it lacked jurisdiction and dismissed the claim.

The instant "motion" must be denied for several reasons not the least of which is that the papers submitted do not constitute a motion pursuant to the CPLR. Even if the Court were to treat the "petition for reconsideration of plaintiffs [sic] claim" as the required notice of motion (CPLR § 2211) the motion is not supported by an affidavit. Instead, claimant submitted what he characterizes as an "affirmation under penalty of prejury [sic] C.P.L. 210.45 [sic]."[1] Unlike the Federal Rules of Civil Procedure applicable in federal courts (see, 28 USC § 1746) New York permits the use of such a device only by a limited number of professionals (see, CPLR 2106). Since claimant does not purport to be an attorney, physician, osteopath or dentist an affidavit is required. Claimant's submissions are, therefore, not entitled to judicial cognizance (see, Doumanis v Conzo, 265 AD2d 296) and no proper request for judicial relief is before the Court for determination.

Claimant's plea that the Court overlook his procedural failures pursuant to the Court's power to disregard mistakes, omissions, defects or irregularities is unavailing. CPLR § 2001 makes clear such relief should not be granted where the omissions or defects render the would-be motion a nullity as in the instant matter. The exercise of the power conferred upon the Court by that section would, under the present circumstances, clearly prejudice the defendant by giving legal vitality to submissions undeserving of the Court's cognizance (see, Doumanis v Conzo, supra).

Claimant's purported motion for reconsideration is denied.

November 19, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Petition for Reconsideration of Plaintiffs [sic] claim dated September 2, 2002;
  2. Affirmation of G. Lawrence Dillon dated September 20, 2002 with exhibits;

Submitted but not considered:

  1. "Affirmation" of Julio Rosario undated with exhibits;
  2. Letter from Julio Rosario dated September 16, 2002 with exhibits;
  3. Undated verified reply to defendant's opposition motion

[1]Claimant obviously intended to refer to NYS Penal Law § 210.45 which provides as follows:

§ 210.45 Making a punishable false written statement
A person is guilty of making a punishable false written statement when he knowingly makes a false statement, which he does not believe to be true, in a written instrument bearing a legally authorized form notice to the effect that false statements made therein are punishable.