Notice of Motion, Attorney Affidavit, with Exhibits 1,2
Memorandum of Law in Support 3
Affirmation in Opposition 4
Reply Affidavit 5
Defendant acknowledges that claimant had previously served a Notice of
Intention to File a Claim upon the Office of the Attorney General on January 14,
2005. In that notice of intention, claimant alleged that it had been damaged in
the amount of $2,000,000.00 as a result of the State’s negligence.
Thereafter, a claim was served upon the Office of the Attorney General on May 3,
2006 (and filed with the Clerk of the Court of Claims on the same date), in
which claimant seeks damages in the amount of $2,500,000.00, based upon
allegations of negligence, nuisance, and trespass.
In this application, claimant now seeks permission to serve an amended notice
of intention to conform to the filed claim. In his reply affidavit,
claimant’s attorney specifically asserts that claimant is not seeking
leave to serve an amended claim, nor is it seeking leave to serve and file a
Since it is served prior to the commencement to an action, a notice of
intention is not considered a pleading. Rather, it serves a dual, but limited,
purpose. First of all, a notice of intention puts the defendant on notice that
a claim may be asserted against it, thereby providing the defendant with the
opportunity to investigate the underlying circumstances of the potential claim.
Additionally, timely and proper service of a notice of intention extends the
jurisdictional time limitation for the service and filing of a claim, thereby
allowing the claimant time to further investigate the potential claim. As a
result, a notice of intention need not set forth a valid cause of action or
legal theory for recovery, or specify the items of damage or injuries sustained
(Epps v State of New York, 199 AD2d 914; Cannon v State of New
York, 163 Misc 2d 623).
Accordingly, since a claim has already been served and filed in this matter in
which money damages have been asserted based upon causes of action sounding in
negligence, nuisance, and trespass, no purpose whatsoever would be served by
granting claimant permission to serve an amended notice of intention to conform
to this filed claim.
Therefore, it is
ORDERED, that Motion No. M-71712 is hereby DENIED.