Pro se inmate claimant’s motion to “amend” Notice of
Intention and/or file late claim denied. Court should not have to guess what
relief claimant is seeking. If it is to amend a Notice of Intention, there is
no such application. If claimant seeks permission to serve and file a late
claim, he has not provided the appropriate basis to grant such relief.
See Court of Claims Act §10(6). If a Notice of Intention was timely
served upon the Attorney General’s Office still has time to properly serve
and file claim. Court of Claims Act §10(3). If no Notice of Intention
served, still time to late file medical malpractice and negligence causes of
1-6 Notice of Motion dated January 30, 2006; Affidavit of Service sworn to
January 30, 2006; photocopy of return receipt card received February 3, 2006;
Notice of Motion for Leave to Amend Complaint dated November 13, 2006; Claim;
Affidavit of Service sworn to on November 13, 2006
Luis Narvaez alleges in the document entitled “Claim” that on
December 27, 2005 he fell off the top bunk in his assigned cell and suffered
serious injury, when his right hand “lock[ed] up on him causing him to
fall from his top bunk striking his head on the locker . . .” He asserts
that due to the negligence of Doctor Mamis, a physician treating him at an
unspecified correctional facility, he was not assigned a lower bunk as required
by his physical condition, namely carpal tunnel syndrome. He indicates that he
served a Notice of Intention upon the Office of the Attorney General on January
There are two documents entitled “notice of motion” attached to
this application. The first document, sworn to January 30, 2006 indicates that
it is a “notice of motion to file a claim.” The second document
entitled “Notice of Motion for leave to amend complaint ” is dated
November 13, 2006, and appears to refer back to the earlier motion with its
attachments. Finally, in a letter to the Court received January 25, 2007, Mr.
Narvaez seems to be saying that what he wanted to do was amend his Notice of
In the Affirmation submitted by the Defendant in response, the Assistant
Attorney General indicates that after an exhaustive search of the files no
pending claim was found. He does not indicate whether the Office of Attorney
General received any Notice of Intention, although the return receipt cards
furnished by Claimant would indicate that some item was received in the Office
of the Attorney General on February 3, 2006, although it is unclear exactly what
In any event, the Court should not have to guess what relief Claimant is
seeking. If it is to amend a Notice of Intention, there is no such application.
If Claimant seeks permission to serve and file a late claim, he has not provided
the appropriate basis to grant such relief. See Court of Claims Act
Moreover, if indeed a Notice of Intention was timely
upon the Attorney General’s
Office and premised upon a date of accrual of December 27, 2005, Claimant would
have two (2) years from the date of accrual within which to properly serve and
file his claim, that is, by this Court’s count, before December 27, 2007.
Court of Claims Act §10(3).
If no adequate Notice of Intention was served on the Office of the Attorney
General - and the fact that the Attorney General finds no evidence of process
from this Claimant in its office suggests this is the case - then Claimant would
have the option of seeking late claim relief within two (2) years and six (6)
months of the date of accrual if he is asserting a medical malpractice claim, or
three (3) years of accrual of the claim if he is asserting negligence.
See Court of Claims Act §10(6); Civil Practice Law and Rules
§§214; 214-a. If Claimant seeks permission to serve and file a late
claim, he must do so in a timely fashion, and provide the appropriate basis to
grant such relief.
Accordingly, Claimant’s Motion [M-72682] is in all respects denied.