New York State Court of Claims

New York State Court of Claims

KING v. THE STATE OF NEW YORK, #2005-016-055, Claim No. 110466-A, Motion Nos. M-69961, CM-70017


Synopsis



Case Information

UID:
2005-016-055
Claimant(s):
LEMAN NALO KING As set forth more fully below, the caption has been amended to reflect that the properly named defendant is the State of New York.
Claimant short name:
KING
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
As set forth more fully below, the caption has been amended to reflect that the properly named defendant is the State of New York.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110466-A
Motion number(s):
M-69961
Cross-motion number(s):
CM-70017
Judge:
Alan C. Marin
Claimant's attorney:
Levine & GilbertBy: Harvey A. Levine, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik, AAG
Third-party defendant's attorney:

Signature date:
August 31, 2005
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Leman Nalo King's claim alleges that on November 19, 2004, he was assaulted by another patient at Creedmoor Psychiatric Center. This is claimant's motion for an order amending the caption to name the State of New York, rather than Creedmoor Psychiatric Center, as defendant. The State does not oppose such application. See ¶3 of the April 12, 2005 affirmation of Ellen Matowik (the "Matowik Aff.").

Defendant cross-moves to dismiss on the ground that the claim fails to comply with §11.b of the Court of Claims Act (the "Act") in that it has the date of the alleged assault as November 19, 2004 rather than what defendant contends is the correct date, November 9, 2004.[1] Section11.b provides in relevant part that:
The claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed.


The claim in this case does state the date when the claim arose. That such date may prove to be incorrect is an issue of fact to be determined by the Court. Defendant has cited no case authority suggesting that incorrectly stating one of the items required by §11.b constitutes a failure to comply with such section.

In view of the foregoing, having reviewed the parties' submissions[2], IT IS ORDERED that motion no. M-69961 be granted to the extent that the caption shall be amended to name the State of New York, rather than Creedmoor Psychiatric Center, as defendant. IT IS FURTHER ORDERED that cross-motion no. CM-70017 be denied.

August 31, 2005
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]In support thereof, defendant submits an incident report listing the date as November 9, 2004. See exhibit B to the Matowik Aff. In addition, according to defendant, claimant originally served a claim which stated the date of the assault as November 9, 2004, but such claim was returned by the Clerk's Office because it was not accompanied by a filing fee. Claimant then filed and served a document entitled "Amended Claim," which stated the assault date as November 19, 2004. It is the latter document which was accepted by the Clerk's Office for filing, stamped with a claim number and given the handwritten notation "Claim."
  2. [2]The Court reviewed the following: claimant's notice of motion with affirmation in support and exhibits A through C; and defendant's notice of cross-motion with accompanying affirmation and exhibits A and B.