New York State Court of Claims

New York State Court of Claims

JOSEPH v. THE STATE OF NEW YORK , #2006-030-509, Claim No. None, Motion No. M-70936


Synopsis



Case Information

UID:
2006-030-509
Claimant(s):
CARMIE JOSEPH
Claimant short name:
JOSEPH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-70936
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
CARMIE JOSEPH, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: ELLEN MATOWIK, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
February 9, 2006
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on the Claimant's motion for permission


to serve and file a late claim:

1-3 Notice of Motion by Carmie Joseph, Claimant; Affidavit of Service; Joseph v State of New York, Claim No. None; Motion No. M-70167, Decision and Order (Scuccimarra, J., October 19, 2005) (copy attached to moving papers)

  1. Affirmation in Opposition by Ellen Matowik, Assistant Attorney General and attached exhibit
This is now the fourth time Ms. Joseph has sought the intercession of this Court in one fashion or another in order to bring before it a claim alleging the disappearance of unspecified documents held in the Office of the Civil Court Clerk in Kings County relative to a lawsuit involving Ms. Joseph.

Initially, a claim based upon the same facts was dismissed because it had been served and filed more than ninety (90) days after its accrual. [See Joseph v State of New York, Claim No. 109228, Motion No. M-68501, Decision and Order (Scuccimarra, J., August 19, 2004)]. The claim had been served and filed in April 2004. [id]. The apparent date of accrual was August 2002, premised upon her request for documents and the Clerk's failure to produce them. [id]. The Court then suggested that perhaps Claimant could make a motion for late claim relief. [id].

A subsequent motion for a six-month extension of some unspecified subject was denied, with the Court again noting that perhaps what Claimant sought was late claim relief. [See Joseph v State of New York, Claim No. 109228; Motion No. M-69087, Decision and Order (Scuccimarra, J., October 28, 2004)].

Thereafter, Claimant made a motion for late claim relief, that was denied. [See Joseph v State of New York, Claim No. None; Motion No. M-69420, Decision and Order (Scuccimarra, J., April 11, 2005)].

Most recently, the Court denied reargument of the April 11, 2005 denial of Claimant's application for late claim relief in a Decision and Order that was served upon Ms. Joseph on October 27, 2005. [See Joseph v State of New York, Claim No. None, Motion No. M-70167, Decision and Order (Scuccimarra, J., October 19, 2005)].

The present motion again places before the Court exactly the same defects presented in earlier motion practice. The Court still has no idea what happened in the underlying civil action or actions, and how Claimant was damaged by the actions of any court employee.

In order to determine an application for permission to serve and file a late claim, the Court must consider, "among other factors," the six factors set forth in §10(6) of the Court of Claims Act. The factors stated therein are: (1) whether the delay in filing the claim was excusable; (2) whether the State had notice of the essential facts constituting the claim; (3) whether the State had an opportunity to investigate the circumstances underlying the claim; (4) whether the claim appears meritorious; (5) whether substantial prejudice resulted from the failure to timely serve upon the Attorney General a claim or notice of intention to file a claim, and the failure to timely file the claim with the Court of Claims; and (6) whether any other remedy is available. The Court is afforded considerable discretion in determining whether to permit the late filing of a claim. See e.g. Matter of Gavigan v State of New York, 176 AD2d 1117, 1118 (3d Dept 1991). The presence or absence of any particular factor is not dispositive Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement System Policemen's & Firemen's Retirement System, 55 NY2d 979, 981 (1982); Broncati v State of New York, 288 AD2d 172 (2d Dept 2001).

Additionally, the motion must be timely brought in order to allow that a late claim be filed ". . . at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules . . ." Court of Claims Act § 10(6). Here, it is difficult to discern what the applicable statute of limitations is since what happened is unclear.

Additionally, Claimant has failed to append a copy of her proposed Claim, as required[1], and thus the Court cannot ascertain whether the particulars of the claim are stated, including a more specific date of accrual[2], a description of what conduct is alleged, and what damages were sustained. See Court of Claims Act §11-b; Sinski v State of New York, 265 AD2d 319 (2d Dept 1999).

Finally, none of the factors noted above that are required to be addressed in order for the Court to consider an application for permission to serve and file a late claim are discussed in the moving papers.

Accordingly, Claimant's Motion Number M-70936 is in all respects denied.

February 9, 2006
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1] Court of Claims Act § 10(6) states in pertinent part: "....The claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application...."
[2] Indeed, Claimant writes in the attachments to the Notice of Motion that "there was no specific accrual..."