New York State Court of Claims

New York State Court of Claims

VASQUEZ v. THE STATE OF NEW YORK, #2004-030-923, Claim No. None, Motion No. M-68419


Synopsis



Case Information

UID:
2004-030-923
Claimant(s):
OSVALDO VASQUEZ
Claimant short name:
VASQUEZ
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-68419
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
Osvaldo Vasquez, pro se
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 15, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The court read and considered the following papers on claimant's motion for permission

to file a late claim: Notice of Motion and Affidavit; Affirmation in Opposition.

Claimant seeks permission, pursuant to Court of Claims Act section 10(6), to file a claim based on the following allegations: On December 15, 1999, he was standing on a street corner in Manhattan when he was approached by an undercover narcotics detective – "detective Arsentalice from the 9th precinct on the lower east side Manhattan New York City" (claimant's affidavit, par. 4) – who told him that if he could get him five $20 bags of cocaine he would give claimant one for free. Claimant agreed and took him to the "coke spot" but it was "closed" (id.). Claimant thought that he should be allowed to keep some of the money for his efforts and an argument ensued, resulting in the detective shooting the claimant, despite claimant's contention that he "never pulled out no gun or knife."(id.)

As defendant points out, claimant has not attached a proposed claim to his motion papers. This is not only contrary to section 10(6)[1] but it also prevents the court from determining the nature of the claim which claimant seeks to file; e.g., it is based on assault and battery, negligent hiring or retention of the detective, perhaps false arrest or some similar tort? In any event, since the incident occurred in 1999, the statute of limitations on any cause of action that could conceivably arise out of the alleged events has long since expired (CPLR 214, 215).[2]

Finally, the alleged offending detective was a member of the New York City Police Department. Since the jurisdiction of the Court of Claims is limited to actions against the State of New York, and the State and the City are distinct entities, with the State not being responsible for the torts of City employees, this court would be without jurisdiction over any claim arising out of the alleged events, regardless of the other problems with claimant's submission.

Accordingly, the motion is denied.

July 15, 2004
White Plains, New York

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




[1]"The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application."(Court of Claims Act §10(6)).
[2]A motion for permission to file a late claim must be made "at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules." (id.)