New York State Court of Claims

New York State Court of Claims

TIRADO v. THE STATE OF NEW YORK, #2007-030-524, Claim No. 113268, Motion No. M-72953


Synopsis


Defendant’s pre-answer motion to dismiss for failure to state a cause of action [CPLR 3211(a)(7)] denied without prejudice. Both the notice of intention and the claim itself sufficiently apprise the defendant of the nature of the claim and when it arose as required, thus the claim states causes of action for assault, wrongful confinement and bailment. Had defendant moved to dismiss because NI untimely with regard to assault or negligence, or because NI did not operate to extend the time within which to file personal property claim, this might be a good motion, but this was not the application made

Case Information

UID:
2007-030-524
Claimant(s):
MIGUEL TIRADO
Claimant short name:
TIRADO
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113268
Motion number(s):
M-72953
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
MIGUEL TIRADO, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: MARY B. KAVANEY, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
May 1, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

The following papers were read and considered on Defendant’s pre-answer motion to


dismiss claim number 113268:

1,2 Notice of Motion; Affirmation by Mary B. Kavaney, Assistant Attorney General and attached papers

  1. Filed paper: Claim
No opposition filed

Mr. Tirado alleges in his claim that defendant’s agents at Green Haven Correctional Facility (hereafter Green Haven) assaulted him in his cell on January 11, 2006, falsely charged him with disciplinary violations resulting in his being sent to the special housing unit, and then allowed his property to be either lost or destroyed. He asserts that he served a notice of intention to file a claim upon the Attorney General’s Office on January 24, 2006, and seeks damages in the amount of $1,008.62.

In lieu of an answer, defendant has served this motion to dismiss for failure to state a cause of action pursuant to Civil Practice Law and Rules §3211(a)(7). The Assistant Attorney General asserts in her affirmation that the office received a notice of intention to file a claim on March 20, 2006. [Affirmation by Mary B. Kavaney, Assistant Attorney General, ¶ 2, Exhibit 1]. She indicates that the claim itself was received on January 11, 2007.

The defendant moves to dismiss the claim based on the inadequacies of the notice of intention in that it states, “assault, physicia abuse, conspiracy and threat attempt on 1-11-06, at about 12 p.m in the afternoon I the above name and number was bit up inside my cell in H-Block 3 company 301 cell by a C.O. A. Celafoni, C.O. MacIsoal and C.O. Jerrll (sic).” [Ibid. ¶4, Exhibit 1]. Counsel for the defendant further states “[t]he notice of intent is supposed to provide enough information to the defendant to put them on notice of the lawsuit.” [Ibid.¶ 5]. Counsel ends with “[a] claim was filed with respect to this action and is enclosed as Exhibit 2, regarding allegations.” [Ibid. ¶ 6]. Presumably the court is to guess what counsel’s argument is.

If counsel were arguing that the notice of intention to file a claim was untimely - at least with respect to any assault or negligence cause of action since it was served more than ninety (90) days after accrual - or that service of the notice of intention was not available as a vehicle to extend the time within which to serve and file the claim with regard to any personal property claims - this might be a good motion. Failure to state a cause of action, however, is not what has occurred here, as both the notice of intention - when read as a whole - and the claim itself sufficiently apprise the defendant of the nature of the claim and when it arose.

Defendant’s motion to dismiss [M-72953] is in all respects denied without prejudice.


May 1, 2007
White Plains, New York

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