New York State Court of Claims

New York State Court of Claims

ALVAREZ v. THE STATE OF NEW YORK, #2006-010-025, Claim No. 109300, Motion No. M-71162


Synopsis


Defendant’s motion to dismiss is denied.

Case Information

UID:
2006-010-025
Claimant(s):
BRENDA ALVAREZ
Claimant short name:
ALVAREZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109300
Motion number(s):
M-71162
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
SOL MERMELSTEIN, ESQ.
Defendant’s attorney:
HON. ELIOT SPITZER
Attorney General for the State of New YorkBy: John Healey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 21, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on defendant’s motion to dismiss:
Notice of Motion, Attorney’s Supporting Affirmation and Exhibits.......................1

Attorney’s Affirmation in Opposition and Exhibits.................................................2

Attorney’s Reply Affirmation....................................................................................3

The Court has considered the papers submitted on the motion and oral argument was heard on August 10, 2006. Upon review of the Court file of Claim No. 109300, consistent with the representations of claimant’s counsel, a Pro Se claim was filed on May 3, 2004 and served upon defendant. Defendant deemed the Pro Se claim a nullity for lack of verification. Claimant’s attorney cured such defect by timely serving defendant with a verification of the Pro Se claim, along with a copy of the Pro Se claim and a letter dated May 19, 2004 which stated, “I have also enclosed a Notice of Claim by my office on Ms. Alvarez’ behalf” (Claimant’s Ex. E). The Notice of Claim prepared by claimant’s counsel was never filed with the Clerk of the Court. Accordingly, defendant’s motion to dismiss Claim No. 109300, refers to the only claim filed with the Clerk of the Court which is the Pro Se claim, as the Notice of Claim prepared by counsel was never filed with the Clerk of the Court.

Accordingly, this Court finds that defendant’s arguments directed at the Notice of Claim prepared by claimant’s counsel are not persuasive. Additionally, the Court finds that, giving the Pro Se claim a most liberal reading, claimant has substantially complied with Court of Claims Act §11(b) and that the claim has provided sufficient information to enable defendant to investigate the accident (see Lepkowski v State of New York, 1 NY3d 201, 207). However, under the circumstances, this Court directs claimant to serve the Amended Notice of Claim he has submitted to the Court today upon defendant and to file that Amended Claim in Albany within 20 days of August 10, 2006.

MOTION DENIED.


August 21, 2006
White Plains, New York

HON. TERRY JANE RUDERMAN
Judge of the Court of Claims