New York State Court of Claims

New York State Court of Claims

MARRERO v. THE STATE OF NEW YORK, #2002-032-018, Claim No. 106524, Motion No. M-65867


Claimant served a claim on the Attorney General and later filed and served another claim, based on the same transaction. Defendant may treat the first claim as a nullity.

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:
Alejandro Marrero, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Eileen E. Bryant Esq., Assistant Attorney General,Of Counsel
Third-party defendant's attorney:

Signature date:
December 9, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

By this motion, counsel for defendant seeks to make some order out of chaos by requesting dismissal of one of two substantively duplicative claims that were served on the Attorney General. However, only one of those claims has been filed with the Court. The motion is granted only to the extent that defendant is entitled to treat the claim that was served, but not filed, as a nullity.

According to counsel, the State was served with a notice of intention and two different claims that set forth what is in essence the same cause of action. In November 2001, claimant served on the Attorney General a notice of intention relating to events that took place at Bare Hill Correctional Facility in March 2000 (Bryant affirmation, Exhibit A). It was alleged that nursing staff at the facility prescribed a "PH cleaner" for claimant to use, that he was not provided with adequate instructions regarding its use, and that the substance caused burns when it was applied to dry areas on his face as a lotion. On April 24, 2002, the Attorney General was served with a claim containing essentially the same factual allegations with some amplification (
id, Exhibit B). In response to this claim, the State filed and served an answer (id, Exhibit C). On August 19, 2002, another claim was served on the Attorney General (id, Exhibit D). While this claim is quite different in physical appearance and wording, it alleges the same essential facts. Counsel for defendant has moved for an order dismissing the second, August 2002, claim in its entirety on the ground that it duplicates a claim already pending between the same parties (CPLR 3211[a][4]).
According to the Court's own records, claimant has filed only one claim that is alleged to have accrued in March 2000 and that relates to the "PH cleaner." This claim was filed on August 19, 2002 and assigned Claim No. 106524. In form and content, it is identical to the claim served on defendant on that same day, the "second" claim that is Exhibit D. It would appear that claimant simply failed to file the original claim, which he served in April 2002, and presumably when he discovered that error, he drafted an entirely new pleading that he then filed and served. Thus, although defendant was served with substantively duplicative claims, no duplicative claims were filed with the Court.

Only one action has been appropriately commenced (Court of Claims Act §11[a]), and that claim should not be dismissed. To protect defendant's rights, however, the Court holds that the claim served on defendant on April 24, 2002, the claim that is Exhibit B in defense counsel's affirmation, is a nullity. The answer served and filed by defendant is also a nullity, as it related to the paragraph numbers and specific allegations contained in the April 2002 claim.[1]
Defendant shall have forty days from the date this decision and order is file-stamped to serve an answer to Claim No. 106524.
Defendant's motion is granted only to the extent set forth above.

December 9, 2002

Albany, New York

Judge of the Court of Claims

The following papers were read on defendant's motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmation of Eileen E. Bryant with annexed Exhibits

2. Affidavit in Opposition (none received)

Filed papers: Claim No. 106524

[1] This answer was filed with the Court but, as there was no claim to which it related, it was filed with other answers to unfiled claims by the Clerk's office.