New York State Court of Claims

New York State Court of Claims

ZAPPALA v. THE STATE OF NEW YORK, #2006-009-046, Claim No. 112297, Motion No. M-71712


Synopsis


Claimant’s motion seeking permission to amend its previously served Notice of Intention was denied.

Case Information

UID:
2006-009-046
Claimant(s):
ZAPPALA FARMS, L.L.C.
Claimant short name:
ZAPPALA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112297
Motion number(s):
M-71712
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
BOND, SCHOENECK & KING, PLLC
BY: Brian J. Butler, Esq.,Of Counsel.
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General
BY: Patricia M. Bordonaro, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
September 7, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking leave to serve an amended notice of intention to file claim.

The following papers were considered by the Court in connection with this motion:
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 late claim.

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.


September 7, 2006
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims