New York State Court of Claims

New York State Court of Claims

LARKINS v. THE STATE OF NEW YORK , #2003-030-554, Claim No. 106697, Motion No. M-66879


Synopsis


Pro se inmate's motion for permission to late file claim denied.

Case Information

UID:
2003-030-554
Claimant(s):
DAVID LARKINS
Claimant short name:
LARKINS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106697
Motion number(s):
M-66879
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
DAVID LARKINS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: DEWEY LEE , ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
July 15, 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1 to 6 were read and considered on Claimant's motion


for permission to serve and file a late claim pursuant to Court of Claims Act §10(6):

1,2 Notice of Motion, Affidavit in Support by David Larkins and accompanying exhibits

  1. Affirmation in Opposition by Dewey Lee, Assistant Attorney General
  1. Affirmation in Opposition to Claimant's Motion to Strike Defenses (Motion No. M-66633) by Dewey Lee, Assistant Attorney General
5-6 Filed Papers: Claim Number 106697, Answer

After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

Denied without prejudice to a subsequent motion for permission to file a late claim, should Claim Number 106697- still pending before this Court - be dismissed or withdrawn. The Court recently denied Claimant's motion to strike certain defenses raised in Defendant's Answer to Claim Number 106697, including the defense of a lack of jurisdiction because of improper and untimely service upon the Attorney General's Office. Court of Claims Act §§10 and 11. [See, Decision and Order, Motion No. M-66633]. The Court did not, however, dismiss the claim because there was no cross-motion requesting such relief and, therefore, Claimant was not given appropriate notice.

In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely file and the failure to serve upon the Attorney General a timely claim or notice of intention to file a claim; and (6) whether any other remedy is available. When - and if - the Claim already pending should be dismissed Claimant will be required to meet these standards should he seek leave to serve and file a late claim.

Accordingly, Motion No. M-66879 is in all respects DENIED without prejudice.


July 15, 2003
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims