New York State Court of Claims

New York State Court of Claims

SABEL v. THE STATE OF NEW YORK, #2002-019-558, Claim No. NONE, Motion No. M-65487


Synopsis


Claimant's motion for extension of time to comply with prior Decision & Order granted CCA 10 (6) relief is granted.

Case Information

UID:
2002-019-558
Claimant(s):
REBECCA SABEL and ROBERT SABEL
Claimant short name:
SABEL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-65487
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
PETER E. TANGREDI & ASSOCIATESBY: Wilbert Ramos, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joseph F. Romani, Assistant Attorney General,of counsel
Third-party defendant's attorney:

Signature date:
August 7, 2002
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants move for an extension of time to comply with the terms of this Court's prior Decision and Order granting permission to serve and file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). (Sabel v State of New York, Ct Cl, April 9, 2002, Lebous, J., Claim No. None, Motion No. M-64717). The State of New York (hereinafter "State") opposes the motion.


The Court has considered the following papers in connection with this motion:
1. DECISION AND ORDER, Lebous, J., Claim No. None, Motion No. M-64717, filed April 9, 2002.
2. Notice of Motion No. M-65487, dated June 18, 2002, and filed July 11, 2002.
3. Affirmation of Wilbert Ramos, Esq., in support of motion, dated June 18, 2002, with attached exhibits.
4. Affirmation of Joseph F. Romani, AAG, in opposition to motion, dated July 16, 2002, and filed July 18, 2002, with attached exhibits.
5. Reply Affirmation of Wilbert Ramos, Esq., in support of motion, dated July 29, 2002, and filed July 30, 2002.

The procedural history of this case is crucial to the disposition of the present motion. Claimants previously moved for permission to file a late claim pursuant to CCA 10 (6). (Sabel v State of New York, supra). The Court, at that time, had jurisdiction to review and determine the motion relative to the negligence cause of action because it had been filed prior to the expiration of the three-year deadline from the date the claim accrued. (CCA 10 [6] and CPLR 214). In granting the motion, this Court directed, in pertinent part, the following:

IT IS ORDERED, that Claimant's motion for permission to file a late claim, Motion No. M-64717, is GRANTED. Claimant shall file a claim in the Office of the Clerk and serve a copy of the claim upon the attorney general within sixty (60) days from the date of filing of this Order in the Chief Clerk's Office of this Court. Furthermore, the claim should be revised to reflect the terms of this Decision and Order. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court with particular reference to CCA §§10, 11, and 11-a.

(Sabel v State of New York, supra, pp 6-7). Said Decision and Order was filed in the Office of the Clerk on April 9, 2002. The permitted claim was personally served on the Attorney General's Office on May 13, 2002 but was not filed in the Office of the Clerk. The 60-day period to do so expired on June 9, 2002.


In this Court's view, the case at bar is distinguishable from cases in which the failure to adhere to CCA 10 and 11 has been deemed jurisdictionally fatal in the first instance, since here we are dealing with the Court's own deadline contained in its prior Decision & Order rather than the statutory time periods set forth in the CCA. This Court has previously held that the fact a claimant has missed a deadline imposed in a 10 (6) Order is not a fatal defect since the original timely 10 (6) motion satisfied the purpose of the statute of limitations. (Oparaji v City University of New York, Ct Cl, April 28, 2000, Lebous, J., Claim No. None, Motion No. M-61212; see also, Holmes v State of New York, Ct Cl, October 28, 1988, Silverman, J., Claim No. 74926, Motion No. M-39257, p 4; Griffin v John Jay Coll., 266 AD2d 16). Consequently, the Court will amend its own prior Order as follows:
IT IS ORDERED, that Claimant's motion for permission to file a late claim, Motion No. M-64717, is GRANTED. Claimant shall file a claim in the Office of the Clerk and serve a copy of the claim upon the attorney general's office on or before September 16, 2002. Furthermore, the claim should be revised to reflect the terms of this Decision and Order. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court with particular reference to CCA §§10, 11, and 11-a.


So there is no misunderstanding, Claimant will once again need to both file a claim in the Office of the Clerk and serve the Attorney General personally or by certified mail, return receipt requested, on or before the assigned date. Additionally, Claimant will again have to adhere to the filing fee requirement of CCA 11-a.


Accordingly, for the reasons stated above, it is ORDERED that Motion No. M-65487 is GRANTED and that this Court's prior Decision and Order in relation thereto is amended in accordance with the foregoing.

August 7, 2002
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims