New York State Court of Claims

New York State Court of Claims

JOSEPH v. THE STATE OF NEW YORK, #2004-030-925, Claim No. 109228, Motion No. M-68501


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Carmie Joseph, pro se
Defendant's attorney:
Eliot Spitzer, Attorney Generalby Grace A. Brannigan, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 6, 2004
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


The court read and considered the following papers on defendant's motion to dismiss the claim: Notice of Motion, Affirmation and Exhibit; Claimant's responding papers filed June 7, 2004 (denominated "Cross-Motion and Amendment"); Defendant's Affirmation in Further Support filed June 16, 2004; Claimant's further responding papers filed July 26, 1004 (denominated "Notice of Motion").

This claim apparently arises out of litigation in Civil Court, Kings County, between the claimant herein, as plaintiff, and Marie Mongerard, as defendant. A default judgment was entered in that action, after an inquest, in favor of the claimant in the amount of $12, 781.90, on April 1, 1996. Although claimant's papers are confusing and somewhat difficult to decipher, it appears that, in August 2002, she requested some documents from the Civil Court clerk ( the "vanishing documents") and that a search for those documents has been "unfruitful." The submitted papers also indicate that the defendant in that action sought, by order to show cause, to vacate the judgement, that such application was denied without prejudice and that there was a second order to show cause, which claimant's then-counsel forwarded to her on May 31, 2002. The papers also include a copy of a Civil Court record room card with two dates on top of the front side – 10/16/02 and 11/20/02 – and the following statement on th back side: "other papers cannot be located by archives but we have a copy of 6-10-02 order," followed by claimant's handwritten question: "Could the computerized information replaced the order of the court for collection?" (Exhibit B to Claim).

In this claim, claimant apparently seeks to hold the defendant liable for the disappearance of these unspecified documents from the clerk's office, at various times attributing this occurrence to negligence and conspiracy.

The papers before the court do not answer a number of questions that seem salient, such as what papers are missing, what was the outcome of the application to vacate the judgment in June, 2002 and how was the claimant damaged by the disappearance of whatever disappeared, since the Civil Court does not seem to question that a judgment was in fact entered in claimant's favor in 1996?

In any event, what is clear from the submitted papers is that whatever events that claimant maintains amounted to an accrual of a cause of action occurred more than 90 days prior to the service and filing of this claim in April 2004 (claimant states: "First request of the vanishing documents August 2002, since that date search has remained unfruitful through the present." "Complaint," p. 4). Accordingly, defendant is correct in asserting that this court lacks jurisdiction over the claim because it was served and filed more than 90 days after accrual (Court of Claims Act section 10[3]) and the instant motion must be, and hereby is, granted. Claimant may make application for permission to file a late claim, if she is so disposed, which would require a much further explanation than what is currently before the court of the facts and circumstances of this matter, specifically how it is that some wrongful act on the part of a court employee resulted in the claimant sustaining damages. Successful prosecution of a motion for permission to late file would undoubtedly require that claimant obtain the assistance of an attorney.

August 6, 2004
White Plains, New York

Judge of the Court of Claims