New York State Court of Claims

New York State Court of Claims

WRIGHT v. THE STATE OF NEW YORK, #2003-019-540, Claim No. 107226, Motion No. M-66547


Claimant's motion for extension of time to comply with prior Decision & Order granted CCA 10 (6) relief is granted

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:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
April 15, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's papers are entitled "Motion to Continue with Proposed Claim or For Extension to File Claim due to Misunderstanding on Part of Claimant and Defendant." The State of New York (hereinafter "State") opposes the motion.

The Court has considered the following papers in connection with this motion:
  1. DECISION AND ORDER, Lebous, J., November 27, 2002, Claim No. None, Motion No. M-65908.
  2. "Motion To Continue With Proposed Claim or For Extension To File Claim", Motion No. M-66547, sworn to March 3, 2003, and filed March 6, 2003.
  3. Affirmation of Joseph F. Romani, AAG, in response to motion, dated April 1, 2003, and filed April 4, 2003, with attached exhibits.
A brief background is in order. Claimant alleges he was assaulted by corrections officers at Southport Correctional Facility on June 3, 2002. On October 2, 2002, Claimant filed a motion for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6) which was designated as Motion No. M-65908. Attached to Claimant's motion papers at that time was a Notice of Intention To File A Late Claim dated September 27, 2002. The Court granted Claimant's 10 (6) motion and allowed him sixty days from the filing of said Decision & Order within which to file and serve a claim. (Wright v State of New York, Ct Cl, November 27, 2002, Lebous, J., Claim No. None, Motion No. M-65908 [UID No. 2002-019-588]).[1] Said Decision & Order was filed with the Clerk of the Court on December 10, 2002 meaning that Claimant had until February 10, 2003 to serve and file his permitted claim.

Thereafter, on January 21, 2003, Claimant filed that same Notice of Intention To File A Late Claim dated September 27, 2002 with the Clerk of the Court which designated said Notice of Intention as Claim No. 107226.[2] According to the State, it received said Notice of Intention by mail on January 17, 2003 and was later advised by the Clerk of the Court that said Notice of Intention had been designated as the Claim herein. In order to protect itself from charges of default, the State filed a Verified Answer containing affirmative defenses and served discovery demands as well.

Which brings us back to Claimant's current motion. Claimant explains that another inmate has since explained to him that he was supposed to file a separate claim after being granted 10 (6) relief, but that he had been confused by a footnote in the Court's prior Decision & Order. As such, Claimant has moved either for an extension of time to comply with said Decision & Order or, in the alternative, requesting that the Court treat the Notice of Intention as a claim. The footnote to which Claimant refers was contained in this Court's prior Decision & Order and stated "The Court is treating Claimant's 'Notice of Intention to File a Late Claim' attached to his motion papers as his proposed claim'." (Wright v State of New York, Ct Cl, November 27, 2002, Lebous, J., Claim No. None, Motion No. M-65908, n 1). A prerequisite to the filing of any 10 (6) motion is the requirement that "[t]he claim proposed to be filed....shall accompany such application." (CCA 10 [6]). Claimant's motion papers in Motion No. M-65908 did not contain a proposed claim, so the Court treated the Notice of Intention as his proposed claim for purposes of that motion only. Otherwise, the Court would have had to reject Claimant's initial motion papers due to his failure to attach a proposed claim. That footnote did not mean, however, that the Notice of Intention was deemed a claim for all purposes, but rather only to give the Court the jurisdiction to review the 10 (6) motion in the first instance.

In any event, there is now a filed and served Claim, the former Notice of Intention. The Court notes that the State's Verified Answer contains various affirmative defenses addressing the sufficiency of the Claim including, but not limited to, failure to detail the nature of the State's conduct (Second Affirmative Defense); failure to detail the nature of the cause of action (Third Affirmative Defense); and failure to include the total sum of damages in the Claim pursuant to CCA 11 (Fourth Affirmative Defense). In the event that there were no jurisdictional defenses contained in the State's Verified Answer the Court may have been inclined to deny Claimant's current motion as moot. However, here we have a Verified Answer containing assertions of jurisdictional defects, particularly the failure to allege a sum of damages, that cannot be cured by way of amendment[3] (Grande v State of New York, 160 Misc 2d 383, 385), because pleading requirements set forth in Court of Claims Act 11(b) are jurisdictional in nature and must be strictly construed. (Finnerty v New York State Thruway Auth., 75 NY2d 721).

The Court will accept Claimant's explanation that he was confused by the afore-referenced footnote and believed that he was supposed to use his old Notice of Intention as the new Claim. Consequently, the Court will amend its own prior Decision and Order as follows:

IT IS ORDERED, that Claimant's motion for permission to permit the late filing and service of a claim, Motion No. M-65908, is GRANTED. Claimant shall file a claim in the Office of the Clerk and serve a copy of the claim upon the attorney general's office on or before June 25, 2003. The service and filing of the claim shall be in conformity with all applicable statutes and rules of the Court with particular reference to CCA 10, 11, and 11-a.

So there is no misunderstanding, Claimant will need to both file a claim in the Office of the Clerk and serve the Attorney General personally or by certified mail, return receipt requested, on or before the assigned date. Moreover, the claim should comply in all respects with the pleading requirements of CCA 11 (a). Additionally, Claimant will again have to adhere to the filing fee requirement of CCA 11-a.

In view of the foregoing, for the reasons stated above, it is ORDERED that Motion No. M-66547 is GRANTED in accordance with the terms herein.

April 15, 2003
Binghamton, New York

Judge of the Court of Claims

Unreported decisions from the Court of Claims are available via the Internet at
The Clerk of the Court understandably accepted said document as the permitted claim since it was within the sixty day period set forth in the aforesaid Decision and Order granting 10 (6) relief.
CCA 11(b) provides that "[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed."