New York State Court of Claims

New York State Court of Claims

BILLUPS v. THE STATE OF NEW YORK, #2004-014-909, Claim No. 107824, Motion Nos. M-67029, CM-67589


Synopsis


TEST

Case Information

UID:
2004-014-909
Claimant(s):
KEITH BILLUPS A/K/A MICHAEL PHILLIPS The caption has been amended to properly reflect the defendant.
Claimant short name:
BILLUPS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to properly reflect the defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107824
Motion number(s):
M-67029
Cross-motion number(s):
CM-67589
Judge:
S. MICHAEL NADEL
Claimant's attorney:
Jeffrey L. Lessoff, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August13, 2004
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court read and considered the following papers on defendant's motion to dismiss the claim for lack of jurisdiction and claimant's cross-motion for permission to late file pursuant to Court of Claims Act §10(6): Notice of Motion, Affirmation and Exhibit, Notice of Cross-Motion, Affirmation and Exhibits, Claimant's "Affirmation"dated October 27, 2003.

According to the allegations of the claim, claimant, a patient at Kingsboro Psychiatric Center, was attacked by another patient on March 18, 2002, an event that claimant attributes to the defendant's negligence based on its alleged knowledge of the assailant's violent tendencies and its failure to properly guard and medicate him. A notice of intention to file a claim was served on the defendant on June 21, 2002 and the instant claim was served and filed on June 4, 2003.

Since a notice of intention must be served within 90 days after accrual of the claim in order to have any effect (Court of Claims Act §10[3]) and since June 21, 2002 was more than 90 days after March 18, 2002, defendant has, in lieu of interposing an answer, moved to dismiss the claim for lack of jurisdiction resulting from late service and filing.

In response, claimant has submitted a cross-motion asking for permission to late file. In support of this cross-motion, claimant's counsel states that the reason that the notice of intention was served late is that claimant was an involuntary patient at the psychiatric center from the date of the incident in question through June 18, 2002, 92 days after accrual of the claim, that he consulted with counsel the day after he was released and that the notice of intention was served two days thereafter. Counsel argues that since claimant was an involuntary patient at a state psychiatric center, claimant was "unable to file this claim on time because he was mentally incapacitated and physically incapacitated" (Lessoff affirmation, par. 8).

Court of Claims Act §10(5) provides: "If the claimant shall be under legal disability, the claim may be presented within two years after such disability is removed."

Claimant's counsel is somewhat confused in that if §10(5) applies, relief pursuant to §10(6) is not necessary, since a person who has been committed to a state psychiatric facility is unquestionably under a legal disability within the meaning of the statute. Boland v State of New York (30 NY2d 337); Young v State of New York (92 Misc 2d 795); Danna v State of New York (207 Misc 505).

Although the burden of establishing that he was under a legal disability is generally on a claimant, this is a pre-answer motion to dismiss for lack of jurisdiction where the claimant has responded by alleging (in an unsworn "affirmation" not supported by any documentary proof of claimant's status on the date in question) that he was under a legal disability and defendant has failed to respond whatsoever to claimant's submission, thus implicitly conceding its validity. Accordingly, the motion to dismiss for lack of jurisdiction must be, and hereby is, denied. The cross-motion is denied as unnecessary.

The court cannot help but observe that the submitted papers raise the question of claimant's continuing competence and strongly suggest that the appointment of a guardian ad litem be considered.



August13, 2004
New York, New York

HON. S. MICHAEL NADEL
Judge of the Court of Claims