1. Notice of Motion and Supporting Affidavit of Robert Sims, pro se, with
2. Affidavit in Opposition of Janet A. Barringer, New York State Department of
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,
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
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.