New York State Court of Claims

New York State Court of Claims

BEROO v. THE STATE OF NEW YORK, #2004-009-06, Claim No. 108394, Motion No. M-67648


Synopsis


Case Information

UID:
2004-009-06
Claimant(s):
PALMERSTON BEROO The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Claimant short name:
BEROO
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The Court, sua sponte, has amended the caption to reflect the State of New York as the only proper defendant before this Court.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108394
Motion number(s):
M-67648
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
PALMERSTON BEROO, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
February 4, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Pre-Answer Motion to Dismiss, Affirmation, with Exhibits 1,2

Claimant had previously requested permission to serve and file a late claim for personal injuries suffered by him when he was allegedly assaulted by several State correction officers on January 30, 2002. By a decision and order dated August 27, 2003[1], this Court granted claimant permission to serve and file a late claim, limited, however, to a cause of action alleging malicious prosecution arising from that incident.[2]

In his claim, served and filed pursuant to the prior order of this Court, however, claimant has alleged a claim for malicious prosecution only against the Oneida County District Attorney. He has made no allegations whatsoever that any officers or employees of the State were involved in the prosecution of claimant for the incident of January 30, 2002, as he had in the proposed claim submitted with his late claim application.

It is well settled that District Attorneys are not considered State employees for purposes of invoking the jurisdiction of the Court of Claims (see, Fisher v State of New York, 10 NY2d 60; Ritter v State of New York, 283 App Div 833).

Since claimant has not asserted any cause of action which could potentially involve State liability, his claim must therefore be dismissed.

The Court notes that claimant did not submit any papers in opposition to this motion.

Accordingly, based on the foregoing, it is

ORDERED, that Motion No. M-67648 is hereby GRANTED; and it is further

ORDERED, that Claim No. 108394 is hereby DISMISSED.


February 4, 2004
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims





[1] See Motion No. M-66671.
[2] In its decision and order granting claimant permission to serve and file a late claim alleging malicious prosecution, this Court found that the claim of excessive use of force by the correction officers was not timely presented to the Court, and therefore late claim relief for that cause of action was denied.