New York State Court of Claims

New York State Court of Claims

SIMS v. STATE OF NEW YORK, #2006-041-011, , Motion No. M-72487


Synopsis


Motion to file a late claim denied where motion was not served upon defendant.

Case Information

UID:
2006-041-011
Claimant(s):
ROBERT SIMS
Claimant short name:
SIMS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-72487
Cross-motion number(s):

Judge:
FRANK P. MILANO
Claimant’s attorney:
Robert SimsPro Se
Defendant’s attorney:
Hon. Eliot Spitzer, New York State Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 21, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Robert Sims (movant) requests permission to file and serve a late claim. The application is denied.

It appears that the movant’s affidavit of service upon the defendant of his motion to file a late claim is either patently false or that it contains inaccurate information. The movant’s notice of motion states, “[p]lease take notice that upon the annexed affidavit of Robert Sims sworn to before me this date of October 26, 2006 . . . .” Movant’s affidavit in support of the motion to file a late claim is signed and sworn before notary public Timothy Mootz (Mootz) “this 26 day of ________, 2006” (which the Court determines to be October 26, 2006).

The movant’s affidavit of service of the motion was also signed and sworn to in the same manner, on October 26, 2006, before notary public Mootz. Yet movant’s affidavit of service states that service upon the defendant was made on October 30, 2006, four days after the affidavit of service was signed by movant and notarized by Mootz, thereby attesting that an act four days in the future had already occurred. Moreover, movant’s affidavit of service fails to indicate in what manner the defendant was served, if in fact service was made at all. As such, the Court finds that movant’s affidavit of service lacks probative value.

Further, defendant has provided an affidavit by Janet A. Barringer, Senior Clerk in the Claims Bureau of the Attorney General’s office, stating that she could find “no record that the Motion to Late File in this matter was ever served on the Attorney General.”

Accordingly, the Court finds that movant has failed to serve the defendant with his application to file a late claim.

“The failure to give requisite notice of motion deprives the court of jurisdiction to entertain the motion” (Burstin v Public Service Mut. Ins. Co., 98 AD2d 928, 929 [3d Dept 1983]; see, Welch v State of New York, 261 AD2d 537, 538 [2nd Dept 1999]).

The application, for the foregoing reasons, is therefore denied, without prejudice.


December 21, 2006
Albany, New York

HON. FRANK P. MILANO
Judge of the Court of Claims


Papers Considered:
  1. Claimant’s Notice of Motion, filed November 2, 2006;
  2. Claimant’s undated Affidavit, together with annexed exhibits;
  3. Affidavit of Janet A. Barringer, sworn to December 4, 2006.
  4. Claimant’s reply, filed December 13, 2006.