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]).
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
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.
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 ). 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
(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.