The following papers were read upon the Court's Order to Show Cause:
1. Court's Order to Show Cause filed on January 4, 2006;
2. Affirmation of Frank V. Kelly, Esq. with annexed exhibits, filed January 18,
3. Affirmation of Joseph F. Romani, AAG (Romani Affirmation) with
annexed exhibits, filed January 25, 2006.
Filed papers: Claim filed March 11, 2005; Verified Answer filed December 26,
On August 4, 2003, Claimant Andre Jones was a minor being held in the Allen
Residential Center located in South Kortright, New York. This Claim alleges
that an employee of said facility used excessive force against the infant
Claimant resulting in personal injuries.
The Court issued an Order to Show Cause directing the parties to submit written
statements and any relevant proof relating to the service of a Notice of
Intention, if any, and the filing and service of this Claim pursuant to Court of
Claims Act (hereinafter "CCA") §§ 10 and 11.
In response to the Order to Show Cause, the State concedes that it was properly
and timely served with a Notice of Intention and later the Claim. More
specifically, the State represents that a Notice of Intention was personally
served upon the Office of the Attorney General on September 19, 2003 (Romani
Affirmation, ¶ 4). The State further represents that this Claim was
personally served upon the Office of the Attorney General on December 5, 2003
(Romani Affirmation, ¶ 5).
The Court's inquiry regarding compliance with CCA §§ 10 and 11 arose
from the State's Verified Answer which was filed with the Clerk of the Court on
December 26, 2003 and contained various affirmative defenses including a First
Affirmative Defense alleging Claimant's failure to timely file the Claim
pursuant to CCA § 10 (Romani Affirmation, ¶ 6; Exhibit D). It
is now apparent that at the time the State prepared its Verified Answer the
Claim had not yet been filed with the Clerk of the Court, hence the State's
First Affirmative Defense. Ultimately, however, Claimant filed his Claim with
the Clerk of the Court on March 11, 2005. The State now concedes that although
the Claim was not contemporaneously filed with the Clerk of the Court at the
time of its service upon the Office of the Attorney General, the Claim was
timely filed on March 11, 2005 which is within two years after the date of
accrual of August 4, 2003 (CCA § 10). As such, the State has withdrawn its
First Affirmative Defense (Romani Affirmation, ¶ 8).
In light of the foregoing, the Court finds that Claimant properly and timely
served a Notice of Intention upon the Office of the Attorney General on
September 19, 2003 and thereafter properly and timely served a Claim upon the
Office of the Attorney General on December 5, 2003 and filed said Claim with the
Clerk of the Court on March 11, 2005 (CCA §§ 10 & 11). As such,
this Claim is properly before the Court subject to the State's remaining
affirmative defenses set forth in the Verified Answer.
Accordingly, the Court vacates the Order to Show Cause filed January 4,