New York State Court of Claims

New York State Court of Claims

RUIZ v. THE STATE OF NEW YORK, #2005-013-052, Claim No. 105154, Motion No. M-70691


Synopsis



Case Information

UID:
2005-013-052
Claimant(s):
LUIS RUIZ
Claimant short name:
RUIZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105154
Motion number(s):
M-70691
Cross-motion number(s):

Judge:
PHILIP J. PATTI
Claimant's attorney:
LUIS RUIZ, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General of the State of New York
BY: JAMES L. GELORMINI, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 22, 2005
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


The following papers were read on motion by Claimant for an extension of time to serve and file a notice of appeal:

Notice of Motion and Affidavit

Opposing Affirmation

Letter from Claimant dated November 29, 2005

Upon the foregoing papers, this motion is granted.

In Motion No. M-70691, Claimant sought an order granting him permission to appeal the dismissal of his claim (see Motion No. M-70335, Decision and Order filed August 11, 2005). By Decision and Order filed November 16, 2005, I denied Claimant's motion, as the trial court's permission to appeal is not required.

In correspondence dated November 29, 2005, Claimant wrote to the Court, with a copy to the Defendant, in which he requested that Motion No. M-70691 "be adapted and submitted as a Notice of Appeal," or in the event the Court was "unable or unwilling to convert the motion," he requested that he be granted an extension in order to file a notice of appeal.

I have chosen to deem the correspondence of November 29, 2005 as if it were an application pursuant to CPLR 2221 to renew or reargue Motion No. M-70691, and as such, Claimant's application is granted. This application is timely sought within 30 days of that prior order. In essence, this application suggests that Motion No. M-70691 should have been considered as an application for an extension of time to file a notice of appeal, not one merely seeking leave of the Court to do so.

Upon review of the papers before me, and upon Claimant's original motion and current application, I grant Claimant an extension of time to serve and file a formal notice of appeal. This matter has strikingly similar circumstances to Joyner v State of New York (133 Misc 2d 86), where the court provided a thorough discussion of the statutory constraints governing when such relief may be granted. I find the parallels here sufficiently persuasive to grant Claimant's motion and allow him to serve and file a formal notice of appeal in accordance with Court of Claims Act §25 and CPLR 5513(b) within 30 days after service of a file-stamped copy of this order. My previous order in Motion No. M-70691 is rescinded and this order shall supersede it. The Clerk is directed to serve this order upon the parties.


December 22, 2005
Rochester, New York

HON. PHILIP J. PATTI
Judge of the Court of Claims