New York State Court of Claims

New York State Court of Claims

ABBAS v. THE STATE OF NEW YORK, #2003-031-091, Claim No. None, Motion No. M-66686


Synopsis


Case Information

UID:
2003-031-091
Claimant(s):
MOHAMED ABBAS
Claimant short name:
ABBAS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-66686
Cross-motion number(s):

Judge:
RENÉE FORGENSI MINARIK
Claimant's attorney:
MOHAMED ABBAS, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER
New York State Attorney General
BY: THOMAS G. RAMSAY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
November 17, 2003
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read on motion by Claimant for permission to file a late claim:
  1. Claimant's Notice of Motion and Affidavit, sworn to April 1, 2003, with attached exhibits;
  2. Affirmation of Thomas G. Ramsay, Esq., dated April 15, 2003;
3. Correspondence from Claimant, received June 19, 2003, with attached exhibits;
4. Second Affirmation in Opposition of Thomas G. Ramsay, dated June 24, 2003.Mohamed Abbas brings this motion for permission to file a late claim pursuant to § 10(6) of the Court of Claims Act (the "CCA"). In his proposed claim, Mr. Abbas alleges that he was assaulted several times by other inmates between the months of May and July of 1999.

Defendant opposes the application, pointing out that all of the events which form the basis of the claim happened more than three years before Claimant filed his motion papers. For this reason, Defendant argues that the proposed claim is time-barred.

Court of Claims Act § 10(6) provides that a motion for leave to file a late claim must be brought "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." In this matter, Claimant alleges both intentional tort, which must be brought within one year (CPLR § 215) and unintentional tort, which must be brought within three years (CPLR § 214). "The failure to file such application within the proscribed time period creates a ‘jurisdictional defect and the court is without discretionary power to grant nunc pro tunc relief'" (Bergmann v State of New York, 281 AD2d 731, 733). Claimant's failure to comply with the statutory requirements for bringing a late claim application precludes the Court from considering Claimant's request for leave to file a late claim.

For the reasons set forth above, Claimant's motion for permission to file a late claim is denied.

November 17, 2003
Rochester, New York

HON. RENÉE FORGENSI MINARIK
Judge of the Court of Claims