New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK, #2004-019-568, Claim No. 109372, Motion Nos. M-68638, CM-68723


Synopsis


Claimant's motion for permission to treat the notice of intention as a claim and the State's cross-motion to dismiss the claim are denied as premature.


Case Information

UID:
2004-019-568
Claimant(s):
JOHNATHAN JOHNSON
Claimant short name:
JOHNSON
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109372
Motion number(s):
M-68638
Cross-motion number(s):
CM-68723
Judge:
FERRIS D. LEBOUS
Claimant's attorney:
JOHNATHAN JOHNSON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
August 20, 2004
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision


Claimant, an inmate appearing pro se, moves for permission to treat the notice of intention as a claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (8) (a).[1] The State of New York (hereinafter "State") opposes the motion and cross-moves to dismiss the corresponding claim.

This claim arose on May 5th, 2004 when, according to claimant, an employee at Southport Correctional Facility ("Southport") improperly refused to provide him with an advance for postage for a letter he desired to mail which was personal, not legal, in nature.


Thereafter, claimant mailed a notice of intention sworn to on May 12, 2004 to the Office of the Attorney General by certified mail, return receipt requested, and which was received by said office on May 24, 2004.


On May 19, 2004, claimant also filed a claim sworn to on May 12, 2004 with the Clerk of the Court. Claimant concedes he never served this claim on the Office of the Attorney General, but insists that Southport officials prevented him from doing so. Claimant now moves for permission to treat his notice of intention as a claim pursuant to CCA 10 (8) (a).
It is undisputed that claimant timely and properly served a notice of intention on the State on

May 24, 2004 relative to this incident which accrued on May 5, 2004. As such, the service of said notice of intention extended claimant's time to serve and file a claim until two years thereafter, namely May 5, 2006. In other words, claimant has until May 5, 2006 to serve the claim in the manner required by CCA 10 and 11. Consequently, the court finds that claimant's motion to treat his notice of intention as a claim and the State's cross-motion to dismiss must both be denied as premature pursuant to CCA 10 (3).


Accordingly, claimant's motion to treat his notice of intention as a claim, Motion No. M-68638, and the State's Cross-Motion No. CM-68723 are DENIED.


August 20, 2004
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with these motions:
  1. Claim, filed May 19, 2004.
  2. Notice of Motion No. M-68638, dated June 7, 2004, and filed June 16, 2004.
  3. Affidavit of Johnathan Johnson, in support of motion, sworn to June 7, 2004.
  4. Notice of Cross-Motion No. CM-68723, dated July 2, 2004, and filed July 6, 2004.
  5. Affirmation of Joseph F. Romani, AAG, in opposition to motion and in support of cross-motion, dated July 2, 2004.
  6. Supplemental Affirmation of Joseph F. Romani, AAG, in opposition to motion, and in support of cross-motion, dated July 13, 2004, and filed July 15, 2004, with attached exhibits.
  7. Affidavit of Carol A. McKay, in support of cross-motion, sworn to July 12, 2004.


[1]Claimant made three other similar motions in three other matters. (Johnson v State of New York, Ct Cl, June 25, 2004, Lebous, J., Claim No. 109115; Motion Nos. M-68426 & CM-68517; Johnson v State of New York, Ct Cl, June 25, 2004, Lebous, J., Claim No. 109187; Motion Nos. M-68513 & CM-68596; Johnson v State of New York, Ct Cl, June 25, 2004, Lebous, J., Claim No. 109077; Motion Nos. M-68425 & CM-68517). The pending motion and cross-motion warrant different treatment inasmuch as this notice of intention contains a colorable claim.