New York State Court of Claims

New York State Court of Claims

MYERS v. THE STATE OF NEW YORK, #2004-028-549, Claim No. NONE, Motion No. M-68322


Synopsis


Movant's application for permission to late file claim denied as application lacked a proposed claim

Case Information

UID:
2004-028-549
Claimant(s):
NATHANIEL MYERS
Claimant short name:
MYERS
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-68322
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
NATHANIEL MYERS, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Dennis M. ActonAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 13, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read on Movant's application pursuant to Court of Claims Act § 10(6):


1) Notice of Motion and Supporting Affidavit of Nathaniel Myers (Myers Affidavit) filed April 15, 2004;

2) Affidavit in Opposition of Assistant Attorney General Dennis M. Acton (Acton Affidavit) filed March 15, 2004.


Movant seeks permission to file a negligence claim based upon an assault he suffered while confined at the Defendant's Coxsackie Correctional Facility on August 20, 2003 (Myers Affidavit ¶ 5).

The motion must be denied. Court of Claims Act § 10(6) permits an application to be made for permission to late file a claim. The statute provides, inter alia, that "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application." Here, Movant has failed to append to the moving papers a proposed claim, and as such there is no proposed pleading for the Court to consider. Moreover, were the Court able to reach the merits of the application and consider the statutory factors (see generally Matter of Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement Sys., 55 NY2d 979, 981), Movant's offer of his ignorance of the Court's requirements and the bare allegations regarding lack of library and photocopy access are not a reasonable excuse for the delay in filing his Claim (see Innis v State of New York, 92 AD2d 606, affd 60 NY2d 654; Hall v State of New York, 85 AD2d 835 [ignorance of law] and Sandlin v State of New York, 294 AD2d 723 [legal resources]). Moreover, Movant's single paragraph of conclusory allegations does not set forth a negligence claim that has the appearance of merit (see Sandlin v State of New York, supra 294 AD2d at 725; Witko v State of New York, 212 AD2d 889). The lack of reasonable excuse coupled with a claim of dubious merit warrants denial of the application (see Matter of Perez v State of New York, 293 AD2d 918, 919; Matter of Lynch v State of New York, 2 AD3d 1002, 1003). Upon review of the statutory factors on this application, the Court would in any event decline to exercise its discretion and would deny the application for permission to late file a claim.

Accordingly, Movant's motion is denied.

August 13, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims