New York State Court of Claims

New York State Court of Claims

JONES v. THE STATE OF NEW YORK, #2006-028-529, Claim No. 110619, Motion No. M-71082


Synopsis


In response to Court's sua sponte Order to Show Cause, Defendant acknowledged proper and timely service of Notice of Intention and proper service and filing of Claim; Order to Show Cause vacated.

Case Information

UID:
2006-028-529
Claimant(s):
ANDRE JONES, an infant by his father and natural guardian, ALBERT PATRICK JONES, and ALBERT PATRICK JONES, Individually
Claimant short name:
JONES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110619
Motion number(s):
M-71082
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
LAW OFFICES OF WILLIAM A GALLINABY: Frank V. Kelly, Esq.
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joseph F. Romani, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 22, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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, 2006;


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, 2003.

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, 2006.


March 22, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims