New York State Court of Claims

New York State Court of Claims

BLAHUT v. THE STATE OF NEW YORK, #2004-031-007, , Motion No. M-67426


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:
Defendant's attorney:
New York State Attorney General
BY: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 20, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 5, were read on motion by Claimant for permission to amend his notice of intention to file a claim:
1. Claimant's Notice of Motion, filed September 22, 2003;

2. Claimant's Affidavit, dated September 16, 2003, with attached exhibits;
3. Affirmation of Timothy P. Mulvey, Esq., dated October 3, 2003, with attached exhibits;
4. Claimant's Affirmation (sic), dated October 15, 2003, with attached exhibits;
5. January 4, 2004 correspondence from Claimant. This is Claimant's motion in which he seeks to amend his notice of intention to file a claim. The original notice of intention, dated December 11, 2002, alleges that Claimant was assaulted by another inmate in the law library of Butler Correctional Facility. This assault occurred on December 4, 2002, when another inmate threw a typewriter, which struck Claimant in the head. Claimant alleges that correction officers compelled him to enforce certain law library occupancy restrictions and that this enforcement is what led to his assault.

With this motion, Claimant seeks to amend his notice of intention by adding allegations that he was harassed and given bogus inmate misbehavior reports by correction officers, that he was not provided an assistant in the disciplinary hearing which resulted, and, finally, that agents of the Defendant tampered with his mail.

However, a Notice of Intention is not a pleading (see CPLR 3011; Murray v State of New York, 202 AD 597). For this reason, this Court does not have authority to permit an amendment of a notice of intention to file a claim. Furthermore, permitting Claimant to amend his notice of intention would defeat the purpose of that document, which is "to provide the State with fair and timely notice by bringing the general nature of the claim to its attention" (Schwartzberg v State of New York, 121 Misc 2d 1095, 1099-1100, affd 98 AD2d 902; see also Barthrop v State of New York, Ct Cl, October 19, 2001 [Claim No. 104214, Motion No. M-63741], Patti, J., UID #2001-013-022].

It should be noted, however, that there was, at least initially, some confusion as to the nature of Claimant's motion and whether or not, in addition to the motion, Claimant had also submitted a claim and the requisite filing fee. Prompted by recent communications from Claimant indicating that he had intended the claim, which was mailed along with the motion papers, to be filed in the Court as opposed to being included as an exhibit to the motion, and further stating that he had sent the Court a facility check in the amount of $50.00 for the Court's filing fee, the Court has searched Claimant's file and has discovered that Claimant had, in fact, included a check. Unfortunately, the check had become lodged at the bottom of the envelope and was not seen by the filing office while processing the Court's mail. This error resulted in the Court accepting the claim as part of the motion papers as opposed to filing the claim on the date of receipt.[1]

In light of this error, the Court finds it prudent to exercise its ameliorative power to correct its clerical mistake (see Court of Claims Act §§ 8, 9 [9]).
For the reasons set forth above, it is hereby,

ORDERED, that Claimant's motion for permission to amend his notice of intention to file a claim is denied, and it is further,

ORDERED, that the Chief Clerk shall accept and process the claim annexed to Motion No. M-67426 as of the day the papers were originally received by the Court, September 22, 2003. The State of New York is directed to file its answer to the claim within 40 days from the file stamped date of this order.

January 20, 2004
Rochester, New York

Judge of the Court of Claims

  1. [1]The general practice is to return claims that arrive without either the required filing fee or an application for a fee waiver of reduction (see Court of Claims Act § 11-a).