New York State Court of Claims

New York State Court of Claims

PEREZ v. STATE OF NEW YORK , #2003-018-245, Claim No. NONE, Motion No. M-66420


Synopsis



Case Information

UID:
2003-018-245
Claimant(s):
LUIS PEREZ
Claimant short name:
PEREZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-66420
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
LUIS PEREZPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 20, 2003
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant brings a motion for permission to file a late claim. The motion was originally


returnable on April 2, 2003; however, it was adjourned to August 6, 2003 after defendant alleged


it was not served with a copy of the motion papers.

Movant attached an affidavit of service to his moving papers asserting that he served the motion upon the Attorney General, Department of Law, at the Capitol, Albany, New York 12224 on January 31, 2003. Defendant has submitted the affidavit of Carol A. McKay, Senior Clerk in the Albany Office of the Attorney General, who is familiar with the record keeping practices of the Litigation Bureau/Claims Practice Group. Ms. McKay advises that after searching the records of the Office of the Attorney General no motion papers were received from movant. The Attorney General's office did receive a letter from the Chief Clerk of the Court of Claims dated February 20, 2003 advising that movant's motion was scheduled for Wednesday, April 2, 2003, which apparently is what prompted the attorney general's response.

Upon receipt of defendant's documents, the Court forwarded a letter to movant, advising that the Court would adjourn the motion to August 6, 2003 to allow him time to mail another copy of the motion papers to the assistant attorney general assigned to the case. The address was provided in the letter to movant. The letter also advised that a new affidavit of service needed to be filed with the Clerk's Office in Albany. Movant did not comply with the Court's direction, and instead he provided a letter response dated May 6, 2003. In the letter, movant advises that the attorney general's office was served, and he attaches another copy of the prior affidavit of service. Although movant sent a copy of the motion papers to the attorney general's office, it appears the copy never actually was received. Despite the Court giving movant an opportunity to re-serve the motion documents upon the attorney general so that the Court could hear the merits of the motion, movant has failed to do so. As a result, the Court will deny movant's motion without prejudice to re-submit after service. [1]

August 20, 2003
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:

Motion for permission to file a late claim..........................................................1

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General, in opposition with exhibit attached thereto..............................2



[1]Ironically, in reviewing the motion papers, the Court notes that movant's claim seeks damages for a bailment. At the time movant filed his motion papers with the Court, his claim was not late in accordance with Court of Claims Act § 10(9), which requires that an inmate seeking damages for loss or destroyed personal property file and serve a claim within 120 days after all administrative remedies have been exhausted. Movant's administrative appeal for his lost property claim was disapproved on November 29, 2002, giving him then, pursuant to the statute, until March 31, 2003 to file and serve his bailment claim. (Saturday, March 29, 2003, was actually the 120th day; however, because it was a Saturday, General Construction Law § 25-a authorizes that the claim may be brought on the next business day, in this case, Monday, March 31, 2003.)