New York State Court of Claims

New York State Court of Claims

NARVAEZ v. THE STATE OF NEW YORK, #2007-030-511, , Motion No. M-72682


Synopsis


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 action.

Case Information

UID:
2007-030-511
Claimant(s):
LUIS NARVAEZ
Claimant short name:
NARVAEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-72682
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
LUIS NARVAEZ, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
March 2, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

The following papers were read and considered on Claimant’s motion:

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

  1. Affirmation by Dewey Lee, Assistant Attorney General
  2. Letter with duplicate attachments from Luis Narvaez received January 25, 2007
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 30, 2006.

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 Intention.

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 was received.

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 §10(6).

Moreover, if indeed a Notice of Intention was timely served[1] 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).[2]

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.


March 2, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. A notice of intention must have been properly served upon the office of the attorney general within ninety (90) days of accrual of the claim.
[2]. A negligence claim “. . . shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim.” Court of Claims Act §10(3).