New York State Court of Claims

New York State Court of Claims

GARVEY v. THE STATE OF NEW YORK, #2006-032-054, Claim No. 111337, Motion No. M-71490


Synopsis



Case Information

UID:
2006-032-054
Claimant(s):
ERROL GARVEY
Claimant short name:
GARVEY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111337
Motion number(s):
M-71490
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Errol Garvey, Pro Se
Defendant’s attorney:
Hon. Eliot Spitzer, NYS Attorney GeneralBy: Kathleen M. Arnold, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
June 23, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moves to dismiss the claim, arguing that claimant failed to state the items of damage sought in his bailment claim, as requires by Court of Claims Act § 11 (b).

Claimant filed his claim in September 2005, stating that it accrued on May 21, 2004, at Clinton Correctional Facility. The claim arose as a result of 4 missing draft bags upon his arrival at the main building from the annex of the facility. Claimant served the claim, with an I-64 form describing the missing property, on the Attorney General via regular mail on September 1, 2005. Perhaps realizing that service via regular mail is improper, claimant re-served the Attorney General via certified mail return receipt requested on September 21, 2005. Claimant failed to include the I-64 Form in this claim mailed to the Attorney General.

Defendant now moves to dismiss the claim arguing that the only properly served claim does not state the items of damage. The Court recognizes that Court of Claims Act § 11(b) requires that a claim state, inter alia, the items of damage or injuries, and defendant is not required to ferret out or assemble information that the section requires claimant to provide (Lepkowski v State of New York, 1 NY3d 201 [2003]). The Court determines, however, that the claim satisfies the substantive pleading requirements of the Court of Claims Act. In making this determination, the Court observes that although claimant did not describe the contents of the bags, he did identify that the property bags were missing. Thus, the Court notes that defendant is on notice to locate the missing bags, and not separate items that have not been identified. As such, the Court determines that he adequately stated his items of damage or injuries.

Accordingly, defendant's motion M-71490 is denied.



June 23, 2006
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Motion filed March 29, 2006;

2. Affirmation of Kathleen M. Arnold dated March 29, 2006; Exhibits A-B annexed;

3. Reply of Claimant filed May 3, 2006.