New York State Court of Claims

New York State Court of Claims

MERCADO v. THE STATE OF NEW YORK, #2007-036-247, Claim No. 113791, Motion No. M-73656


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Defendant’s attorney:
By: Jeane L. Strickland Smith, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 18, 2007
New York

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to dismiss this claim for personal injuries filed by an inmate at Fishkill

Correctional Facility because the claim was improperly served. Claimant opposes.[1] This claim arose at Fishkill Correctional Facility where, on September 3, 2006, claimant was issued a misbehavior report and told to report to the “box” located on the third floor of his housing unit. He alleges this order was improper because he had been given a “flat pass,” which stated that for health reasons he was not to be required to climb stairs. Some time later,[2] claimant fell and injured himself while going down the stairs to attend the misbehavior hearing. The claimant alleges he was required to descend the stairs with his hands cuffed in front; the escorting correction officer ignored his protest that he needed assistance; the officer also did not try to stop him as he was falling; the handrail, which he attempted to grab, was missing; and, claimant was given inadequate medical treatment following the fall. Claimant served a notice of intention to file a claim on September 27, 2006. The claim subsequently was served on June 1, 2007 and filed with the Clerk of the Court on June 4, 2007.

In lieu of answering, defendant has moved for an order dismissing the claim on the ground the claim was served by regular mail rather than certified mail, return receipt requested (CMRRR), as required by section 11 (a) of the Court of Claims Act. In support of the motion, defendant has submitted a photocopy of the front and back of the envelope in which the claim arrived, establishing it was sent by regular mail and that CMRRR service was not employed. Claimant acknowledges the error, stating that by mistake he reversed procedures and filed the claim with the Clerk of the Court using CMRRR, sending a copy of it to the Attorney General by regular mail. The notice of intention, however, was properly served using CMRRR service, and claimant, in his opposition, has requested that the notice of intention be treated as a claim pursuant to section 10 (8) of the Court of Claims Act:
A claimant who timely serves a notice of intention but who fails to timely serve or file a claim may, nevertheless, apply to the court for permission to treat the notice of intention as a claim. The court shall not grant such application unless: it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant.

Here, the notice of intention was served within ninety days of the date the claim accrued, and claimant’s application to have it deemed the claim is being made within the applicable three-year statute of limitations (CPLR 214). The content of the notice of intention contains sufficient facts to constitute a claim, and the court can perceive no prejudice to defendant if the requested relief is granted. Claimant, however, has failed to make his application in the manner directed by the statute, that is, upon motion. It is contained, instead, in an unnumbered paragraph on the second page of his affidavit submitted in opposition, the caption of which is “Verified Reply and Opposition to the Defendant’s Motion for Dismissal for Lack of Jurisdiction Pursuant to CAA § 11.”

Prior to 2001, neither Court of Claims Act section 10 (8) nor section 10 (6), which provides for late claim relief, contained the words “upon motion,” and it was not uncommon for the court to accept a request such as the one made here as sufficient application for the requested relief. See e.g. Grossman v State of New York, UID #2000-001-009, Claim No. 99475, Motion No. M-60986 [Ct Cl May 8, 2000], Read, P.J. (Claimant’s request “made in opposition to the motion” is treated as an application to deem the notice of intention a claim). In 2001, both sections of the Court of Claims Act were amended to, among other things, include the phrase “upon motion” (L 2001, ch 205, § 1).[3] Consequently, should claimant wish to obtain the court’s permission to have his notice of intention treated as a claim, he must request that relief using the proper procedure.

Accordingly, defendant’s motion is granted and Claim No. 113791 must be dismissed.

December 18, 2007
New York, New York

Judge of the Court of Claims

[1].The court considered the following papers on the motion: defendant’s notice of motion dated June 29, 2007, together with affirmation in support, and exhibits; claimant’s verified reply to defendant’s motion dated July 13, 2007 and exhibits.
[2]. There is some confusion about the date or dates on which these events occurred. The misbehavior report was evidently issued on September 3, 2006, but in some places (second page of his claim, for example) claimant states he was injured on the same day and at others (the first page of his claim and the second page of the notice of intention), claimant states that the fall occurred September 8, 2006. Adding to the confusion, the medical records annexed to his claim contain an entry for September 7, 2006 stating claimant had been brought in for treatment after having fallen down the stairs.
[3]. The reason for adding the term “upon motion” was to confirm the ruling of the Third Department in Sciarabba v State of New York, 152 AD2d 229 [3d Dept 1989], which held that a motion to late file should be considered a preaction motion that could be served by regular mail and not something that must be commenced, far more formally, by way of a special proceeding (New York Bill Jacket, 2001 A.B. 7925, ch 205). Whatever the intended purpose, however, the amendment added an express and unambiguous requirement to both subdivisions 6 and 8.