New York State Court of Claims

New York State Court of Claims

HARRELL v. THE STATE OF NEW YORK, #2003-005-511, Claim No. NONE, Motion No. M-66235


Synopsis


Claimant's motion for permission to file a late claim is denied.

Case Information

UID:
2003-005-511
Claimant(s):
JAMES HARRELL 86A4815
Claimant short name:
HARRELL
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-66235
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
James Harrell,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Heather R. Rubinstein, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
April 3, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On February 19, 2003, the following papers, numbered 1 to 3, were read on motion by Claimant for permission to file a late claim:

1, 2 Notice of Motion, Affidavit in Support
  1. Affirmation in Opposition
Upon the foregoing papers, this motion is denied.

This is Claimant's motion for permission to file a late claim pursuant to Court of Claims Act §10(6). The motion must be denied for several reasons. First, there is no proposed claim appended to the moving papers, and as such there is no proposed pleading for me to consider.

Second, and perhaps more significant, the underlying events to which Claimant alludes in his affidavit in support appear to be two stabbing incidents which took place at Auburn Correctional Facility on January 18, 1988 and again on March 3, 1988. While it is not clear which of these incidents form the basis of the Claimant's reference to negligence underlying his purported claim, the application here is so untimely as to warrant denial of the motion. Assuming that either stabbing incident forms the basis for Claimant's motion, each event took place some fifteen years ago, and regardless of Claimant's theory of liability, but again assuming it is for negligence relating to personal injury, he cannot overcome the initial hurdle that he would be barred from asserting a like claim because of article 2 of the CPLR, see, e.g., CPLR 214.

Thus the motion itself is late, far beyond the most generous statute of limitations plausible under CPLR article 2. It therefore is not necessary for me to review the six statutory factors enumerated in §10(6). Accordingly, and in the absence of a proposed claim, the motion must be denied.


April 3, 2003
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims