New York State Court of Claims

New York State Court of Claims

HARTER v. THE STATE OF NEW YORK, #2006-009-067, Claim No. NONE, Motion No. M-71990


Synopsis


Claimant’s application seeking permission to serve a late notice of intention to file a claim was denied, since no such relief is available under the Court of Claims Act.

Case Information

UID:
2006-009-067
Claimant(s):
CARILYNN HARTER
Claimant short name:
HARTER
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-71990
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
DELDUCHETTO & POTTER
BY: Ernest A. DelDuchetto, Esq.,Of Counsel.
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General
BY: Edward F. McArdle, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
November 28, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant has brought this motion seeking permission to serve a late notice of intention to file a claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit of Ernest A. DelDuchetto, Esq., with Exhibits 1,2


Affidavit of Michele J. Meka 3

Answering Affirmation of Edward F. McArdle, Esq., Assistant Attorney General 4


Affidavit of Ernest A. DelDuchetto, Esq. (Reply) 5

In this application, claimant’s attorney states that a Notice of Intention to File a Claim was served upon the Attorney General on or about June 21, 2006. Claimant’s attorney subsequently realized that this notice of intention was served by regular, first class mail, and not by certified mail, return receipt requested, as required by Court of Claims Act § 11(a). At the time that this defect in service was discovered, however, the time within which to serve a notice of intention or serve and file a claim under § 10(3) of the Court of Claims Act had expired. Claimant therefore immediately instituted this application seeking permission to serve a late notice of intention upon the Attorney General.

In its opposition to this application (see Item 4), the Assistant Attorney General representing the State has treated this application as an application to serve and file a late claim under § 10(6) of the Court of Claims Act. In his reply affidavit (see Item 5), however, claimant’s attorney is quite specific in emphasizing that claimant, in this application, solely seeks permission to serve a late notice of intention, and that she is not seeking, at this point in time, permission to serve and file a late claim. In particular, claimant’s attorney avers that his office is currently investigating whether a meritorious claim of medical malpractice may exist against the State, and that at this point he is unsure whether a formal claim will ever be instituted.

Section 10(6) of the Court of Claims Act provides the Court with the authority, in its discretion, to permit a claimant to serve and file a late claim in such instances where a claimant has failed to file or serve upon the Attorney General a claim, or has failed to serve upon the Attorney General a notice of intention to file a claim, within the requisite time periods set forth in other subdivisions of § 10.

Although § 10(6) provides the Court with this discretionary authority to permit the service and filing of a late claim, the statute does not confer any similar authority upon the Court to permit the service of a late notice of intention, as requested by claimant herein. Simply stated, claimant has requested relief in this application which this Court does not have the statutory authority to grant, and therefore this application must be denied. As stated above, claimant’s attorney made it quite clear in both his supporting affidavit (Item 2) and in his reply affidavit (Item 5) that claimant was not seeking late claim relief herein, but merely sought permission to serve a late notice of intention. Although this Court is unable to grant the relief sought herein, however, claimant is advised that nothing in this Decision and Order precludes her from bringing an application pursuant to § 10(6) seeking late claim relief, should the investigation being undertaken by her attorney ultimately lead her to believe that she may have a meritorious claim against the State. As specifically provided in § 10(6) claimant is forewarned that any such application must be brought “before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules.”
Based on the foregoing, therefore, it is

ORDERED, that Motion No. M-71990 is hereby DENIED.


November 28, 2006
Syracuse, New York

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