New York State Court of Claims

New York State Court of Claims

PRENDERGAST v. THE STATE OF NEW YORK, #2005-028-558, Claim No. NONE, Motion No. M-69925


Synopsis


Inmate's motion for permission to file a late claim is denied as improper where the motion papers do not contain a proposed claim.


Case Information

UID:
2005-028-558
Claimant(s):
JOHN PRENDERGAST
Claimant short name:
PRENDERGAST
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-69925
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
JOHN PRENDERGAST, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Saul Aronson, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
October 4, 2005
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read on Movant's motion for permission to file an untimely claim:

1. Notice of Motion and Supporting Affidavit of John Prendergast, pro se.


2. Affirmation in Opposition of  Saul Aronson, AAG.


Filed papers: None.


This motion for permission to file an untimely claim, brought pursuant to Court of Claims Act §10(6), is defective, in that the motion papers do not contain a proposed claim. The statute expressly states: "The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application." Rather than attaching a separate proposed claim to his motion papers, Movant set forth the factual allegations that constitute his claim in the third paragraph of his affidavit in support of the motion. Without full compliance with the statute, however, there is no proposed pleading for the Court to consider (Harrell v State of New York, Ct Cl, Corbett, J., Claim No. NONE, UID #2003-005-511, April 3, 2003, see also Concepcion v County of Oneida of the State of New York, Oneida County Sheriff of the State of New York, Ct Cl, Sise, P. J., Claim No. NONE, Motion No. M-69466, UID #2005-028-516, February 18, 2005).
As with any statute that provides litigants with an extraordinary remedy or privilege, there must be strict compliance with the procedural requirements in applying for such relief (see e.g. Weiner v MKVII Westchester, LLC, 292 AD2d 597 [2d Dept 2002][re: an individual's power to file a notice of pendency on real property]). Accordingly, the Court is obliged to deny this motion as improper.
Motion No. M-69925 is denied, without prejudice to Movant's right to make a subsequent motion for the same relief upon proper papers.



October 4, 2005
Albany, New York

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