New York State Court of Claims

New York State Court of Claims

HAKAJ v. STATE OF NEW YORK, #2006-018-548, Claim No. 112348, Motion No. M-71814


Synopsis


Defendant’s motion to dismiss is DENIED.

Case Information

UID:
2006-018-548
Claimant(s):
BENNY HAKAJ
Claimant short name:
HAKAJ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112348
Motion number(s):
M-71814
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
BENNY HAKAJPro Se
Defendant’s attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: TIMOTHY P. MULVEY, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 20, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion to dismiss the claim as untimely. Claimant, pro se, has not

timely responded, but submits a letter dated five days after the return date inquiring into the status of the motion and seeking that all correspondence be sent to his new address, as he was soon to be released from prison.

Defendant argues that on March 7, 2006, a Decision and Order of this Court was filed granting Claimant’s cross-motion (CM-70694) for permission to file and serve a late claim. The Decision and Order specifically directed that the proposed claim be filed and served in accordance with the Court of Claims Act and all other applicable rules “within 60 days of the date this Decision and Order is filed with the Clerk of the Court.”

Claimant served a copy of the claim upon the Attorney General on April 25, 2006. Claimant, however, did not file his claim with the Clerk of the Court until May 16, 2006. Defendant argues that Claimant had until May 8, 2006 to file his claim, yet he failed to do so in compliance with the Court’s Decision and Order; therefore, he has not attained jurisdiction over the Defendant.

Claimant has not disputed Defendant’s recitation of the facts. Although the claim was timely served upon the Attorney General, it was filed with the Clerk of the Court eight days beyond the time frame directed in the Decision and Order granting Claimant’s late claim application. There is a “strong public policy in favor of resolving cases on the merits” and this Court found, by its prior Decision and Order (CM-70694), that the Claimant has a potentially meritorious claim (Acosta v State of New York, 270 AD2d 164, 165). Coupled with the fact that Claimant is pro se and Defendant has shown no prejudice by the late filing of the claim with the Clerk, the Court will deny the Defendant’s motion (see Yackle v State of New York, 21 AD3d 1283; Griffin v John Jay College, 266 AD2d 16; Greene v State of New York, Ct Cl, Decision and Order of Marin, J., signed June 5, 2006, Cl. No. 111808, Motion No. M-71357,

UID # 2006-016-043; Oparaji v City University of New York, Ct Cl, Decision and Order of Lebous, J., signed April 6, 2000, Cl. No. None, Motion No. M-61212, UID # 2000-019-510; but see Allstate Insurance Co, a/s/o Roy Zyla v New York State Thruway Auth., Ct Cl, Decision and Order of Scuccimarra, J., signed August 4, 2006, Cl. No. 112093, Motion No. M-71564, UID # 2006-030-560).

Accordingly, the Court denies Defendant’s motion, and it is

ORDERED, that the claim filed with the Clerk of this Court on May 16, 2006, is deemed timely filed.


December 20, 2006
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion...................................................................................................1

Affirmation of Timothy P. Mulvey, Esquire, Assistant Attorney General,

in support with exhibits attached thereto...................................................2


No response was received from Claimant in opposition.