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,
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
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 ). 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
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