New York State Court of Claims

New York State Court of Claims

MARTIN v. THE STATE OF NEW YORK, #2002-032-026, , Motion No. M-66002


An inmate's motion for permission to late file a claim is denied as unnecessary. When the motion was brought, the applicable time limitation for filing a claim as of right had not expired. Although it did expire while the motion was pending, movant must bring a new motion to obtain the relief afforded by section 10(6).

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:
Paul Ali Martin, Pro Se
Defendant's attorney:
Hon. Eliot Spitzer, NYS Attorney General
By: Michael C. Rizzo, Esq., Assistant Attorney General,
Of Counsel
Third-party defendant's attorney:

Signature date:
January 21, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Movant seeks the Court's permission to late file a claim. This motion was brought in November 2002, and the proposed claim alleges that
on October 1, 2002, correction officers at Upstate Correctional Facility used "excessive force & unnecessary use of force," pushing claimant down a flight of stairs, stabbing him in the right thumb, kicking him, and punching him in the face (proposed claim, ¶2).
Claims for either intentional or unintentional torts arising from the actions of State officers and employees must be commenced, either by filing and service of a claim or service of a notice of intention, within ninety days of the date on which the claim accrued (Court of Claims Act §§10[3], 10[3-b]). Litigants who fail to comply with the time limitations contained within sections 10(1) to 10 (5) of the Court of Claims Act may apply to the Court for permission to file an untimely claim, pursuant to section 10(6) (McCann v State of New York, __ Misc 2d ; 2002 WL 31940712). At the time this motion was commenced, movant still had the right to commence an action without Court permission, as ninety days had not passed since the claim accrued. He could have filed and served a claim, or served a notice of intention, anytime before December 30, 2002. The remedy provided by Court of Claims Act §10(6) is available to "[a] claimant who fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention, as provided in the foregoing subdivisions, within the time limited therein." Even if movant misread or did not understand that he had an independent right to commence an action, he was so informed by the the affidavit of defense counsel, which was served on November 27, 2002[1] and which stated, "As ninety days have not elapsed since the date of the alleged accrual date the time for properly serving and/or filing a notice of claim and/or notice of intention to file a claim has not elapsed."
It appears from the Court's records that movant did not avail himself of the opportunity to commence his claim as of right. Those records contain no pending claim under the names Paul Ali Martin, Paul Martin, Paul Ali Hill, or Paul Hill (see footnote 1). It may be that movant simply changed his mind and decided not to sue the State.
If, however, he wishes to pursue his proposed action against the State, it will be necessary for him to make another, timely motion for permission to late file. As noted above, by the express terms of the statute, a potential claimant whose time to commence an action has not expired does not fit within the definition of those entitled to seek permission to late file. If motions of this nature were entertained once the applicable time period had expired, defense counsel could be lured into opposing such a motion only on the grounds of prematurity (as counsel did here) and then, if the Court's decision was not issued until after expiration of the statutory time limit, having to petition for additional time to address the motion decided on its merits. Most significantly, if the practice of moving for permission to late files claims that were not, in fact, untimely were to become widespread, it would inevitably result in more work for the Court by requiring a motion decision rather than mere acceptance of a claim.
Claimant's motion is denied, on the ground that it was unnecessary when it was commenced.

January 21, 2003
Albany, New York

Judge of the Court of Claims

The following papers were read on movant's motion for permission to file an untimely claim
1. Notice of Motion and Supporting Affidavit of Paul Ali Martin, pro se, with annexed proposed claim

2. Affirmation in Opposition of Michael C. Rizzo, Esq., AAG

Filed papers: None

[1] The Court notes that the name in the caption of the affidavit was "Paul Ali Hill," rather than "Paul Ali Martin." The DIN identification number (01-R-5522) was that assigned to claimant, however, and there is no reason to assume that the affirmation did not reach claimant in a timely fashion. The affidavit clearly state that the response relates to a claim that accrued on October 1, 2002.