New York State Court of Claims

New York State Court of Claims

SANCHEZ v. THE STATE OF NEW YORK, #2005-027-523, Claim No. 110469, Motion Nos. M-70007, CM-70148


Synopsis


Defendant’s motion for dismissal, claimant’s cross-motion for a late claim.

REVERSED 1st Dept 5/22/07

Case Information

UID:
2005-027-523
Claimant(s):
JUAN F. SANCHEZ
Claimant short name:
SANCHEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110469
Motion number(s):
M-70007
Cross-motion number(s):
CM-70148
Judge:
ALTON R. WALDON, JR.
Claimant’s attorney:
Fotopoulos, Rosenblatt and Green, Esqs.By: Suzan D. Paras, Esq.
Defendant’s attorney:
Hon. Eliot Spitzer, Attorney GeneralBy: Ellen Matowik, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 14, 2005
City:
New York
Comments:

Official citation:

Appellate results:
REVERSED 1st Dept 5/22/07
See also (multicaptioned case)



Decision

The following papers were read and considered by the Court on these motions: Claimant’s Notice of Motion, Claimant’s Affirmation in Support with annexed Exhibits A-E, Defendant’s Notice of Cross-Motion, Defendant’s Affirmation in Support of Cross-Motion and in Opposition to Motion and Claimant’s Affirmation in Opposition. Claimant, Juan F. Sanchez, has brought this motion seeking an Order extending the time for claimant to comply with this Court’s previous Decision and Order filed January 13, 2005 and permitting claimant to file and serve a Supplemental Verified Claim. Defendant, the State of New York, has opposed this motion and has cross-moved for an Order dismissing the claim pursuant to Civil Practice Law and Rules (CPLR) R 3211 and 3212 as well as Court of Claims Act (CCA) §§ 10 and 11.

As already recounted in this Court’s previous Decision and Order filed January 13, 2005 claimant alleged that on September 23, 2003, at approximately 9:50 A.M., he was entering the Bronx Supreme Court Building when he was ordered by a Court Officer to empty his pockets and walk through a metal detector. Claimant placed his ballpoint pen in a small plastic basket and then proceeded through the metal detector. The Court Officer took the pen from the basket and removed the top of the pen which exposed a two-inch long letter opener. Claimant then contends that he was grabbed and put in handcuffs. Claimant states that the Court Officer forcibly brought claimant to a separate room where he was, inter alia, punched in the eye by the Court Officer. Eventually, claimant was charged with New York Administrative Code 10-133-(c), unlawful possession of a knife in a public place, given a Desk Appearance Ticket and released. The charges were dismissed on November 25, 2003.

Claimant served a Notice of Intention on defendant on January 5, 2004. Claimant filed his Verified Claim with the Chief Clerk of the Court on March 15, 2004.

This Court, in its January 13, 2005 Decision and Order, dismissed all the causes of action raised in claimant’s originally filed Claim with the exception of the claim for malicious prosecution. Additionally, the Court granted claimant’s motion to file a late Claim to a limited extent. Specifically, claimant was permitted to include only the causes of action for assault, battery and negligent infliction of emotional distress in his second Verified Claim.

Pursuant to the January 13, 2005 Decision and Order, claimant filed and served his second Verified Claim. Defendant raised certain Affirmative Defenses in its Answer after which claimant brought this motion seeking an extension of time to comply with this Court’s prior Decision and Order. Claimant is asking for permission to file and serve a Supplemental Verified Claim in order to address the concerns raised by defendant in this matter. Defendant argues that the claim fails to comply with Court of Claims Act (CCA) § 11 since it fails to adequately describe the manner of the incident, it fails to specify the injuries alleged and it fails to enumerate the amount of damages in the claim. Defendant also contends that the claim fails to comply with the directives of this Court’s prior Decision and Order in that it makes allegations beyond that which were permitted by the Court. Thus, defendant is requesting that the Court dismiss the second Verified Claim.

CCA § 11(b) “places five specific substantive conditions upon the State’s waiver of sovereign immunity by requiring the claim to specify (1) ‘the nature of [the claim]’; (2) ‘the time when’ it arose; (3) the ‘place where’ it arose; (4) ‘the items of damage or injuries claimed to have been sustained’; and (5) ‘the total sum claimed’”(Lepkowski v State of New York, 1 NY3d 201,207 [2003]). Claimant described the underlying incident in his Verified Claim by essentially stating that on September 23, 2003, at approximately 9:50 A.M., he was walking in the Bronx County Supreme Court building located at 851 Grand Concourse when he was assaulted, battered and subjected to negligent infliction of emotional distress by court officers who accused him of criminal activity. This description while not as detailed as the information provided in claimant’s late Claim application is sufficient to satisfy prongs 1, 2 and 3 of CCA § 11(b). Claimant seeks in his Supplemental Verified Claim to clarify and expand the detail provided in regard to his injuries and to add specific amounts being claimed.

The January 13, 2005 Decision and Order unequivocally limited the causes of action to assault, battery and negligent infliction of emotional distress. Claimant reiterates that he is only presenting causes of action for assault, battery and negligent infliction of emotional distress in his second Verified Claim and that he does not seek damages for a cause of action not specifically pled.

Since the second Verified Claim was served and filed pursuant to this Court’s prior Decision and Order, the Court finds that the alleged infirmities contained within claimant’s second Verified Claim can be cured by amendment (Shimmerlik v City University of New York, 142 Misc 2d 118, 536 NYS2d 380 (Ct Cl 1988), affd 154 AD2d 959, 546 NYS2d 506 (1st Dept 1989); Perez v State of New York, Ct Cl, February 28, 2005 (claim no. 108710, motion nos. M-68881 and CM-69323, UID# 2005-016-015, Marin, J.). However, claimant’s application is to extend his time to comply with this Court’s prior Decision and Order. Consequently, this Court shall dismiss the claim numbered 110469 for failure to comply with CCA § 11(b). Additionally, the Court finds it appropriate to extend claimant’s time to comply with the previous Decision and Order filed January 13, 2005 by serving and filing the Supplemental Verified Claim as his Claim (Yackle v State of New York, 21 AD3d 1283 [4th Dept 2005]; Griffin v John Jay College, 266 AD2d 16 [1st Dept 1999]). The language in the final paragraph of the Decision and Order filed January 13, 2005 which read “Accordingly, within sixty (60) days of the date this Decision and Order is filed, claimant shall file and serve the Verified Claim, together with a payment of the appropriate filing fee, pursuant to the Court of Claims Act §§ 11 and 11-a.” is amended to read “Accordingly, on or before February 28, 2006 claimant shall serve and file the Supplemental Verified Claim (attached as Exhibit E to claimant’s motion M-70007), said Supplemental Verified Claim is to be denominated a Verified Claim, together with a payment of the appropriate filing fee, pursuant to the Court of Claims Act §§ 11 and 11-a.

Therefore, for the foregoing reasons, defendant’s cross-motion to dismiss is granted. Claimant’s motion is granted to the extent stated herein.

December 14, 2005
New York, New York

HON. ALTON R. WALDON, JR.
Judge of the Court of Claims





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