New York State Court of Claims

New York State Court of Claims

MOORE v. THE STATE OF NEW YORK, #2003-015-338, Claim No. 107354, Motion No. M-66666


Synopsis


Claimant's application for late claim relief denied as unnecessary where previously filed claim remained viable in light of the defendant's failure to move to dismiss claim on jurisdictional grounds of untimeliness although issue was raised in the State's answer.

Case Information

UID:
2003-015-338
Claimant(s):
ERIC MOORE
Claimant short name:
MOORE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107354
Motion number(s):
M-66666
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Eric Moore, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Michael W. Friedman, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
July 7, 2003
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The claimant's application for late claim relief pursuant to Court of Claims Act § 10 (6) is denied as unnecessary. Claimant was allegedly injured on August 23, 2002 in the main yard of Great Meadow Correctional Facility at Comstock, New York when he was attacked by another, unknown inmate sustaining lacerations to his face and two fingers on his right hand requiring medical attention. Claimant alleged in a claim filed February 18, 2003 that the State was negligent in allowing him to enter the main yard because he was supposed to be confined to his cell from August 20 to August 30, 2002 as the result of a disciplinary penalty imposed at Southport Correctional Facility prior to his transfer to Great Meadow on August 22, 2002.

The State filed an answer to the claim on March 13, 2003 raising as a first defense: "The claim was not filed or served within the 90-day time limitation as prescribed by Sections 10 (3) and 11 of the Court of Claims Act. Accordingly, the Court lacks subject matter jurisdiction of the claim and personal jurisdiction over defendant, the State of New York." The defendant, however, did not move to dismiss the claim either before or in response to the instant motion. While judicial economy would seemingly have favored the making of a motion to dismiss the claim it would be inappropriate for the Court to address the jurisdictional defense of untimeliness without it having been formally raised by motion or cross-motion and affording the claimant an opportunity to oppose dismissal (cf., Pagano v New York State Thruway Auth., 235 AD2d 408, lv to appeal denied 90 NY2d 804; Taylor v State of New York, 160 Misc 2d 120).

Since at this time Claim No. 107354 is still pending the application for late claim relief is denied as unnecessary.


July 7, 2003
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated March 31, 2003;
  2. Affidavit of Eric Moore sworn to April 8, 2003 with exhibits;
  3. Affirmation of Michael W. Friedman dated April 25, 2003 with exhibits.