New York State Court of Claims

New York State Court of Claims

SCOTT v. THE STATE OF NEW YORK, #2005-028-515, Claim No. none, Motion No. M-69477


Synopsis


Movant's application for permission to late file a claim pursuant to Court of Claims Act §10(6) is denied. Movant neither addressed the statutory factors nor appended a proposed claim.

Case Information

UID:
2005-028-515
Claimant(s):
MAURICE SCOTT
Claimant short name:
SCOTT
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-69477
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
MAURICE SCOTT
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Paul F. Cagino, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 18, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Movant's application for permission to late file a Claim:


1) Notice of Motion of Maurice Scott filed December 7, 2004


Opposition: NONE[1]


Filed Papers: NONE.

Movant has denominated his application as one for relief pursuant to Court of Claims § 10(6); however, his moving papers are deficient for a number of reasons which require denial of the motion.
In the first instance, Movant has failed to support his application with an affidavit and notice of motion in proper form (see CPLR 2214; 22 NYCRR § 206.8 ) choosing instead to merge these documents into a single paper. That paper, denominated "NOTICE OF MOTION PERMISSION TO FILE LATE CLAIM", was unsworn[2] and as such, the Court will not consider the scant factual averments made therein[3].

Assuming arguendo the application was in proper form, an application pursuant to Court of Claims Act §10(6) must be accompanied by a proposed Claim (Harrell v State of New York, Ct Cl, Corbett, J., Claim No. NONE, UID #2003-005-511, April 3, 2003; Court of Claims Act § 10[6]) and address the statutory factors (see Matter of Gavigan v State of New York, 176 AD2d 1117, 1118; Bay Terrace Coop. Section IV v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981) . Although Movant references an "attached claim" none was submitted with his papers and the papers submitted only address the threshold question of timeliness (Court of Claims Act § 10[6]).

Accordingly, Movant's motion is DENIED without prejudice.


February 18, 2005
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1] The Court received a letter from an Assistant Attorney General indicating that the Attorney General had no record of receiving motion papers and therefore was not in a position to respond (but see Electric Insurance Company v Grajower, 256 AD2d 833; Fairmount Funding Ltd. v Stefansky, 235 AD2d 213; East River Savings Bank v Curtis, 229 AD2d 999 [in order to effectively question an affidavit of service, the Defendant must provide more than the mere denial of the receipt of the pleading by mail to overcome the presumption of delivery which attaches to a properly mailed letter]).
[2] A proper affidavit is a sworn statement which ordinarily begins with its venue, an opening statement, a recitation and a signature, subscribed and sworn to before a person authorized to administer oaths, usually a notary public. The notary public then attests with his own signature that the affidavit was "Sworn to before me this date" and is followed by the notary's stamp and number (see Siegel, NY Prac § 205 at 324 [3d ed]).
[3] There are so few facts that the Court can not determine what type of claim - i.e bailment or negligence - Movant is pursuing.