New York State Court of Claims

New York State Court of Claims

REYNOLDS v. STATE OF NEW YORK, #2002-018-184, Claim No. NONE, Motion No. M-65633


Synopsis


Movant's motion for permission to treat the notice of intention as a claim is granted.

Case Information

UID:
2002-018-184
Claimant(s):
DEBORAH L. REYNOLDS
Claimant short name:
REYNOLDS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-65633
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
MacKENZIE HUGHES, LLPBy: Arthur Wentlandt, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
November 21, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
Movant brings a motion for permission to file a late claim pursuant to Court of Claims


Act §10(6); or in the alternative, for permission to treat the notice of intention as a claim pursuant

to Court of Claims Act §10(8)(a). Defendant does not oppose the motion.

The claim seeks damages as a result of the alleged negligent design, construction and maintenance of State Route 69 and 285 in the Town of Annsville, County of Oneida. It is alleged that on July 24, 2000 at approximately 4:00 p.m., the movant was operating her motor vehicle in an easterly direction along Route 69 near the intersection of Route 285 when another motorist, Leslie D. Hoffman, operating her motor vehicle in a southerly direction, failed to yield at a yield sign and struck movant's vehicle in the intersection as a result of the State's negligence
. It is alleged that movant suffered serious injuries including multiple fractures of her right knee, severe lacerations, a collapsed lung, emotional injuries, pain and suffering, economic loss, and medical expenses as a result of the accident.
By all accounts, movant served a timely notice of intention upon an Assistant Attorney General by personal service on October 10, 2000. Movant then mailed a claim
to the Clerk of the Court for filing on July 18, 2002, and personally served a copy upon an Assistant Attorney General that same day. The claim was received by the Clerk on July 19, 2002. On July 26, 2002 the Clerk's office returned the claim to movant's counsel advising that the filing fee was not included. The filing fee and claim were again sent to the Clerk's office on July 26, 2002. The claim was filed on July 29, 2002; five days beyond the two-year statutory period (Court of Claims Act Section 10(3)).
Movant now seeks relief under Court of Claims Act §10(6), permission to file a late claim or §10(8)(a), permission to treat the notice of intention as a claim. Claimant's request for permission to treat the notice of intention as a claim is granted.

Court of Claims Act §10(8)(a) provides:
"[a] claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion 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; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."

Claimant's application is timely made (CPLR 214 (5)). The notice of intention was timely served and set forth sufficient facts to constitute a claim. The only information which is not included is the total sum being claimed for damages. However, the Court does not find that the failure to state the amount of damages being sought is fatal to the application (
Compare, Muller v State of New York, 184 Misc 2d 500, 502). That defect can be remedied by the filing of an amended claim. Given that the notice of intention was served within 90 days of the date of accrual, and adequately apprised defendant of the allegations surrounding the claim, there is no prejudice to the defendant.
Movant's motion for permission to treat the notice of intention as a claim is GRANTED. Claimant's request for relief under Court of Claims Act §10(6) is hereby DENIED as moot. The notice of intention which was served upon the State on October 10, 2000, shall serve as the claim in this action. The Chief Clerk is directed to make a copy of the notice of intention, which is contained in claimant's motion papers and designate it as a claim. The claim shall be given the appropriate number as if it had been filed on October 10, 2000. Within 30 days from the date this decision and order is filed with the Clerk of the Court movant should amend her claim to set forth a demand for relief and file and serve the amended claim. Defendant shall have 40 days from the date this decision and order is filed with the Clerk of the Court to serve its answer to the claim, or if an amended claim is filed and served, 40 days from service of the amended claim in accordance with the Uniform Rules for the Court of Claims [22 NYCRR] §206.7(b).

Claimant should withdrawn the claim, Claim No. 106428, filed July 29, 2002, or stipulation to the Court entering a dismissal order since that claim is now duplicative.


November 21, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding this motion:


Notice of Motion..................................................................................1


Affidavit of Arthur W. Wentlandt, Esquire, in support, with

all exhibits attached thereto........................................................2


Affirmation of Joel L. Marmelstein, Esquire, Assistant

Attorney General.......................................................................3