New York State Court of Claims

New York State Court of Claims

SIMS v. THE STATE OF NEW YORK, #2007-028-526, Claim No. N/A, Motion No. M-72503


Synopsis


Motion to late file is denied because the motion papers were not served on Defendant.

Case Information

UID:
2007-028-526
Claimant(s):
ROBERT SIMS
Claimant short name:
SIMS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
N/A
Motion number(s):
M-72503
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
ROBERT SIMS, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Paul F. Cagino, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 2, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Movant’s motion for permission to file an untimely claim:

1. Notice of Motion and Supporting Affidavit of Robert Sims, pro se, with annexed Exhibits;


2. Affidavit in Opposition of Janet A. Barringer, New York State Department of Law; and


3. Reply Affidavit of Robert Sims, pro se.


Filed papers: None

Movant seeks permission, pursuant to Court of Claims Act §10(6), to file an untimely claim based on allegations that on June 9, 2006 he was subjected to an unlawful strip search when he arrived at the Clinton Correctional Facility Satellite Unit and that, in addition, his right to privacy was not respected by security staff at that facility between June 9 and June 13, 2006. This motion was instituted within the applicable three-year CPLR, Article 2 statute of limitations (CPLR 214) and consequently is timely.

In response to the motion, Defendant has submitted the affidavit of Janet A. Barringer, a Senior Clerk in the Office of the Attorney General and someone familiar with the records of that office. She states that after a thorough search of those records, she was unable to find any motion to late file that was served on Defendant by Movant.

There is an Affidavit of Service annexed to the Notice of Motion, indicating that a copy of the moving papers was served on the Attorney General. In his reply affidavit, however, Movant acknowledges that an error must have occurred in which both copies of the papers were filed with the Court and no copy served on the Attorney General. Movant received two notifications from the Chief Clerk acknowledging receipt of two separate motions. The second motion, which is also described as a motion for permission to late file, was assigned to the Hon. Frank P. Milano and denied because of non-service on the State (Sims v State of New York, UID #2006-041-011, Motion No. M-72487 [Ct Cl 2006], Milano, J.).

In his reply affidavit, Movant states that he re-served a copy of the motion papers on the Attorney General on December 8, 2006. The Court has been informed, however, that the only document relating to Movant that was received after Ms. Barringer’s affidavits were executed was a copy of Judge Milano’s decision in Motion M-72487. The Court can only conclude that another error occurred which prevented Movant’s papers from reaching the Defendant.

There is sufficient time, before expiration of the applicable statute of limitations, for Movant to commence another motion seeking the same relief, and the instant motion will be denied, on grounds of non-service, without prejudice to such application.

Movant’s motion is denied.


March 2, 2007
Albany, New York

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