New York State Court of Claims

New York State Court of Claims

ORTIZ v. THE STATE OF NEW YORK, #2005-019-577, Claim No. NONE, Motion No. M-70747


Synopsis


Claimant's motion for permission to late file is denied due to failure to submit proposed claim.

Case Information

UID:
2005-019-577
Claimant(s):
JOSE ORTIZ, #87-B-2047
Claimant short name:
ORTIZ
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-70747
Cross-motion number(s):

Judge:
FERRIS D. LEBOUS
Claimant's attorney:
JOSE ORTIZ, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Geoffrey B. Rossi, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
November 4, 2005
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant, an inmate appearing pro se, moves for permission to file a late claim pursuant to Court of Claims Act (hereinafter "CCA") 10 (6). The State of New York (hereinafter "State") opposes the motion.

Claimant alleges that he injured his right knee at Elmira Correctional Facility (hereinafter "Facility") on April 29, 2000. Claimant asserts that for approximately five years after his injury he continually complained about the pain in his knee and a bulge in his leg, but was not referred to an orthopedist specialist until February 2005. The specialist recommended surgery for a torn or loose muscle which was performed on April 6, 2005. Now, by way of this motion filed on October 3, 2005, claimant seeks permission to file a late claim for medical malpractice.


CCA 10 (6) requires that "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany [the] application." Here, as noted by the State, claimant has failed to submit a proposed claim with his moving papers and, as such, there is no proposed pleading for the court to consider and is a basis for denying this motion. (Harrell v State of New York, Ct Cl, April 3, 2003, Corbett, J., Claim No. None, Motion No. M-66235 [UID No. 2003-005-511]; Concepcion v County of Oneida of the State of New York et al, Ct Cl, February 18, 2005, Sise, P.J., Claim No. None, Motion No. M-69466 [UID No. 2005-028-516]).[1]


Accordingly, claimant's motion for permission to late file, Motion No. M-70747, is DENIED without prejudice.

November 4, 2005
Binghamton, New York

HON. FERRIS D. LEBOUS
Judge of the Court of Claims


The court has considered the following papers in connection with this motion:
  1. Notice of Motion No. M-70747, dated September 20, 2005, and filed October 3, 2005.
  2. Affidavit of Jose Ortiz, in support of motion, sworn to September 20, 2005, with attached exhibits.
  3. Affirmation of Geoffrey B. Rossi, AAG, in opposition to motion, dated October 27, 2005, and filed October 31, 2005.

[1]Selected unreported decisions from the Court of Claims are available via the Internet at