New York State Court of Claims

New York State Court of Claims

MORINE v. STATE OF NEW YORK, #2003-005-512, Claim No. 106757, Motion No. M-66293


Synopsis


Defendant's motion for dismissal of the claim is denied.

Case Information

UID:
2003-005-512
Claimant(s):
FRED MORINE 01R5063
Claimant short name:
MORINE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106757
Motion number(s):
M-66293
Cross-motion number(s):

Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Fred Morine,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 4, were read on motion by Defendant for an order dismissing the claim:

1, 2 Notice of Motion, Affirmation and Exhibit Annexed
  1. Opposing Affidavit
  2. Filed Paper: Claim
Upon the foregoing papers, this motion is denied.

In lieu of an answer, the Defendant moves for an order dismissing the claim herein on the ground that it is untimely, in contravention of the 90 day service and filing requirements of Court of Claims Act §§ 10 and 11. The underlying claim herein relates to damages from a purported false imprisonment allegedly accruing on December 18, 2001. For purposes of this motion I will utilize the accrual date of December 18, 2001, as alleged by Claimant, but it may well be that the accrual date is somewhat later, as a cause of action sounding in false imprisonment generally accrues upon the release from imprisonment, not its commencement. Resolution of that question however is unnecessary to my determination of this motion.

The claim herein was filed on October 7, 2002, and served upon the Defendant by certified mail, return receipt requested, on December 4, 2002. The grounds for dismissal allege that since a claim was neither filed nor served within 90 days of the accrual of the cause of action, it is untimely and must be dismissed.

However, Claimant alleges in his answering affidavit that he served the Defendant with a Notice of Intention to file a claim within the aforesaid 90 day period, to wit, on or about March 15, 2002. Indeed, the claim itself contains an allegation of such service on March 15, 2002, yet the moving papers fail to address or acknowledge that allegation. As further evidence in support thereof, Claimant refers to Attachment #6 to his filed claim which appears to be a request for notarization services at Five Points Correctional Facility, dated March 9 and/or 11, 2002, allegedly requesting "Notarize Notice of Intent", and which also notes that "*Notarize has been loged (sic) in Law Library Log Book on March, 15.02." I realize that if the Notice of Intention was notarized on March 15, 2002, service could not have been completed on March 15, 2002, inasmuch as service is not deemed complete until receipt by the Attorney General's office (Court of Claims Act §11[a][i]). I also realize that Claimant has not supplied a copy of said Notice of Intention, or proof of service thereof. Nonetheless, his contention that he served a Notice of Intention was contained in his claim, and it is repeated and averred under oath in his Answering Affidavit. The Defendant has ignored the allegation, and has not provided any refutation of such service. Without any factual dispute from someone with personal knowledge, it appears that a Notice of Intention was served, purportedly on or about March 15, 2002, and, assuming such service, the filing of the claim here on October 7, 2002, and the service of the claim on December 4, 2002, are both timely being within one year of the accrual of a cause of action sounding in false imprisonment (§10 [3-b]).

Accordingly, the motion is denied.


April 3, 2003
Rochester, New York

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