New York State Court of Claims

New York State Court of Claims

LEE v. STATE OF NEW YORK, #2005-028-582, Claim No. NONE, Motion No. M-70558


Application to file a claim made by Douglas Lee, the subject of prior orders relating to his ability to commence an action in this Court, is determined to be inadequate.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
BY: Joseph F. Romani, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
December 8, 2005

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on Movant's motion for permission to file a claim or to have his notice of intention to file a claim deemed a claim:

1. Notice of Motion, Notice of Intention, and Claim of Douglas Lee, pro se

2. Affirmation in Opposition of Joseph F. Romani, AAG

Filed papers: None

Movant seeks the Court's permission to file a claim or to have a notice of intention, which was served on the Office of the Attorney General on February 13, 2004, deemed a claim, pursuant to Court of Claims Act §10(8)(a). The Notice of Intention alleges that on December 22, 2003, at Woodbourne Correctional Facility, the ceiling of Movant's cell collapsed, causing him to be injured by falling mortar, concrete and cement. He further alleges that Defendant had actual notice of the defective condition of the ceiling prior to this incident. The notice of intention was timely, and it was properly served by certified mail, return receipt requested (Romani Affirmation, Exhibit A).

That portion of the motion seeking permission to have the Notice of Intention deemed a claim is unnecessary. By timely and proper service of a notice of intention, a litigant reserves the right to commence an action and may file and serve the claim anytime within two years after the date of accrual. In other words, had he not been subject to special restrictions, Movant would have had until December 22, 2005 in which to file and serve his claim. Movant was advised of this fact by Senior Court Attorney Kevin Macdonald in a letter dated May 11, 2005 (id. Exhibit B).

Mr. Macdonald also reminded Movant that, in his case, it would be necessary for him to first seek the Court's permission to file a claim. Because of Movant's record of commencing prolific and frivolous actions in this Court, former Presiding Judge Donald J. Corbett, Jr. issued an order in December 1990 that restrained him from filing any new claim unless and until he obtained an order from the Presiding Judge or a designee granting him permission to file such a claim. In order to obtain such permission, Movant was required to make a written request, in the form of a motion, within 90 days of the date the his purported cause of action accrued or, if a notice of intention has been employed, within the time period allowed for filing and service of a claim. If permission were granted, he would then have 40 days in which to file and serve his claim, which would be deemed filed nunc pro tunc to the date the application was filed (Supplemental Order, Claim No. 79553, Motion No. M-41426, filed December 7, 1990). Subsequently, another judge of this Court, former Judge Jerome F. Hanifin imposed monetary sanctions totalling $400 and directed that the Chief Clerk refuse to accept for filing any claims of Movant unless and until these judgments had been satisfied (Decision and Order, Claim No. 76712 et al., filed March 15, 1991). Still later, in response to a claim that had been filed without prior approval, then Presiding Judge Christopher J. Mega spelled out the type of showing that Movant must make to establish that one of his proposed claims has merit:
[C]laimant is advised that he must submit an affidavit setting forth in detail the allegations leading to the conclusion that defendant's employees were negligent, as well as medical proof demonstrating a. . . "serious injury."[1]

(Decision and Order, Claim No. 92855, filed March 19, 1996.)

In the May 2005 letter from Mr. Macdonald, Movant was reminded of the previously-imposed requirements:

[I]t has been determined that you should file an application for permission to file your claim addressing, among other relevant factors, whether these sanctions have been satisfied in the intervening years and, if not, why. Towards this end, I am enclosing a notice of motion form, a claim form, an affidavit of service and an application for a filing fee reduction form. You should fill out these forms and create an affidavit explaining your circumstances and include any relevant exhibits and return them to the Court for the Presiding Judge's review.

Rather than following this advice, Movant waited until August 2005 and then submitted only a notice of motion form, which he filled out to request permission "to file my claim or to convert my notice of intention into a claim." He provides no further information about either the proposed claim or the damages he seeks, other than to state that he seeks to recover for "personal injury severe head injury," adding that he was in the hospital at the time of writing. He also included the following statement, "I do not have any money in my prison account."

In the Court's view, the bare statement that Movant does not, at present, have any money in his inmate account does not adequately explain why he has failed, for the past 14 years, to pay the sanctions imposed by Judge Hanifin. Nor do the bare allegations of his claim suffice to establish that the proposed claim is, in fact, meritorious. While allegations that a ceiling fell down require little explanation, Movant bears the burden of setting forth his allegations "in detail." This would include specific information about the notice he asserts the State had that the ceiling was in a defective condition and particulars, supported by medical records, of his injuries.

Because the application for permission was made, however minimally, within the time period for commencing a claim, this motion will be adjourned for thirty days, from the date the decision and order is file-stamped, to permit Movant to supplement his moving papers with a more adequate explanation of his failure to pay Court-imposed sanctions and a more detailed showing that the proposed claim has merit. In the event that Movant fails to file and serve supplemental papers within the designated time period, this motion will be denied and the Chief Clerk is directed to close the motion file without the necessity of further judicial action.

December 8, 2005
Albany, New York

Judge of the Court of Claims

[1] The claim which Movant sought to file in that instance was for personal injuries allegedly sustained in a motor vehicle accident.