New York State Court of Claims

New York State Court of Claims

TRUCCHIO v. STATE OF NEW YORK, #2006-018-550, Claim No. 112596, Motion No. M-72263


Synopsis


Defendant’s motion is granted to the extent that paragraphs 5-17, 52-201, 210-215 are DISMISSED as clearly untimely.

Case Information

UID:
2006-018-550
Claimant(s):
PAUL TRUCCHIO
Claimant short name:
TRUCCHIO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112596
Motion number(s):
M-72263
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
PAUL TRUCCHIOPro Se
Defendant’s attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: THOMAS TRACE, ESQUIRE Senior Attorney
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 pre-answer motion to dismiss portions of the claim as untimely.

Claimant has filed no opposition to the motion.

On October 24, 2005, Claimant, an inmate at Gouverneur Correctional Facility, served a notice of intention upon the defendant advising that he intended to file a claim regarding incidents that occurred on August 17, 2005. The notice of intention reflects that on that day Claimant was assaulted numerous times by various correction officers while being transported. On August 3, 2006, Claimant filed and served a claim containing 226 paragraphs. The claim reads like diary entries and a number of paragraphs seem to assert wrongdoing on the part of the State not included in the notice of intention. It is Defendant’s undisputed position that any portion of the claim not noticed in the notice of intention should be dismissed.

Court of Claims Act § 10(3-b) provides that:
“[a] claim to recover damages for injuries to property or for personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee...shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim.”


Claimant’s notice of intention solely related to an assault by State employees upon him on August 17, 2005. Any allegation in the claim, unrelated to the assaultive conduct of the correction officers on August 17, 2005, is untimely. Service of a notice of intention does not give Claimant carte blanche to assert any allegations of wrongdoing by the State. A notice of intention is intended to provide the State with prompt notice of the potential claim against it (Heisler v State of New York, 78 AD2d 767; Sega v State of New York, 246 AD2d 753, 755, lv denied 92 NY2d 805). The notice of intention extends the time for filing the claim only for those allegations and causes of action for which notice was provided therein (see Blaylock v State of New York, 13 Misc 3d 1219A; Moran v State of New York, Decision and Order of Read, J., signed May 26, 2000, Cl. No. 100594, Motion No. M-61263, UID #2000-001-012). Although it is unclear, some portions of the allegations in the claim may involve incidents that occurred within 90 days of the date the claim was served and filed on August 3, 2006. These allegations or causes of action would also be timely.

Accordingly, based on the foregoing, Defendant’s motion is granted to the extent that paragraphs 5-17, 52-201, 210-215 are DISMISSED as clearly untimely.



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 Thomas M. Trace, Esquire, in support, with exhibits attached

thereto.........................................................................................................2


No opposition papers were received from the Claimant.