New York State Court of Claims

New York State Court of Claims

ARCE v. THE STATE OF NEW YORK, #2003-030-558, Claim No. NONE, Motion No. M-66705


Pro se inmate's motion for permission to late file claim denied as premature. Claim alleging same violations still pending.

Case Information

JULIO ARCE The caption has been amended to reflect the only proper defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended to reflect the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Third-party defendant's attorney:

Signature date:
July 23, 2003
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, 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 Julio Arce, Claimant sworn to March 21, 2003, and accompanying exhibits

  1. Affirmation by Elyse J. Angelico, Assistant Attorney General, and accompanying exhibits
4,5 Filed Papers: Claim No. 107192; Answer[1]

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

Denied. Claimant filed another Claim on January 13, 2003 with respect to exactly the same incident of alleged assault by correction officers asserted in the proposed claim herein. Whatever jurisdictional infirmities Claim Number 107192 may contain, it is still pending before this Court. Should it be withdrawn or dismissed at some future time upon an appropriate motion, then it might be appropriate for the Claimant to seek permission to serve and file a late claim concerning the alleged incident of December 20, 2002. At this juncture, however, it is premature to address the merits of the present motion.

Claimant is reminded that should the already pending claim be dismissed, and should he seek permission to serve and file a late claim, he must fulfill the requirements of Court of Claims Act §10(6). 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.

Additionally, the motion must be timely brought in order to allow that a late claim be filed " any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules...." Court of Claims Act § 10(6).

If what Claimant is attempting to do is amend his already filed Claim Number 107192, then the submission is not sufficient either. A pleading in the Court of Claims may be amended in accordance with the provisions of Civil Practice Law and Rules § 3025(b). See, 22 NYCRR § 206.7 (b). Although leave to amend should be freely given, the determination is left to the sound discretion of the Court. The Court should consider whether there would be any prejudice to the opposing party; any effect an amendment would have on the orderly prosecution of the action; whether the moving party unduly delayed in seeking to add the new allegations; and whether the proposed amendment is palpably improper or insufficient as a matter of law. Where the proposed amendment lacks merit as a matter of law, or where amendment would be immaterial, among other things, the Court should deny leave based upon such legal insufficiency. A copy of the proposed amended Claim should generally be included, as well as any factual affidavits or exhibits that "...unequivocally make out a prima facie basis for the claim...or other matter sought to be added...." [Commentary C3025:11; Civil Practice Law and Rules § 3025]. A claim may not be amended to try to avoid jurisdictional infirmity.

Accordingly, Claimant's motion for permission to serve and file a late claim is hereby DENIED without prejudice.

July 23, 2003
White Plains, New York

Judge of the Court of Claims

[1] The Answer filed by Defendant with a designated Claim Number 107192 is clearly not responsive to the Claim filed January 13, 2003 assigned Claim Number 107192. In the papers submitted in opposition to the present motion, Defendant indicates that the Answer filed is in response to yet another document entitled "Claim" 107192 that Claimant served by regular mail upon the Attorney General's Office and received by that office on March 26, 2003.