New York State Court of Claims

New York State Court of Claims

JOHNSON v. THE STATE OF NEW YORK , #2004-030-566, Claim No. None, Motion No. M-68626


Synopsis



Case Information

UID:
2004-030-566
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):
None
Motion number(s):
M-68626
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
JOHNATHAN JOHNSON, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
August 16, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 5, were read and considered on Claimant's motion


for permission to serve and file a late claim brought pursuant to Court of Claims Act §10(6):

1,2 Notice of Motion; Affidavit in Support by Johnathan Johnson, Claimant

  1. Affirmation by Mary B. Kavaney, Assistant Attorney General, and attached exhibit
  1. Affidavit in Opposition by Johnathan Johnson, Claimant
  1. Filed papers: Claim Number 108528
In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available.

In his Affidavit in Support of the present motion, Claimant refers to a previous Decision by this Court in which his motion to have the Court treat his Notice of Intention as a Claim was denied without prejudice to consideration of a timely motion for permission to late file a claim based on the same facts. [See Johnson v State of New York, Claim Number 108528, Motion No. M-67896 (Scuccimarra, J., May 17, 2004)]. In that Decision, the Court noted that the Claimant appeared to be anticipating dismissal of the Claim - which appears to be jurisdictionally defective based upon a failure to properly serve the Claim upon the Attorney General - by making the motion. Claimant does not, however, discuss any of the factors set forth in Court of Claims Act §10(6), and does not provide a copy of the proposed Claim, as required.[1] The Court cannot ascertain whether the particulars of the claim are stated, including the date of accrual, specific location of the alleged incident, and what damages are alleged.

Additionally, although Claimant has included an affidavit of service indicating he served the within motion upon the Attorney General as required, the Affirmation submitted by the Assistant Attorney General indicates that the only document they have received in connection with the present motion is the letter from the Chief Clerk of the Court of Claims calendaring the motion.

In his Affidavit in Opposition Claimant reiterates that he served the Attorney General with the motion.

In any event, and without determining whether service was proper or not, Claimant's motion is denied on procedural grounds alone, in that he has failed to append a copy of the proposed claim. The Court notes that it might be the Claimant's position that the proposed Claim is the one already filed with the Court, however it is not this Court's job to guess at the Claimant's unexpressed intentions. More substantively, Claimant has not addressed any of the factors delineated in Court of Claims Act §10(6).

Motion Number M-68626 is denied in its entirety.

August 16, 2004
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] Court of Claims Act § 10(6) states in pertinent part: ". . . The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application . . . "