New York State Court of Claims

New York State Court of Claims

PATTERSON v. THE STATE OF NEW YORK, #2007-044-579, Claim No. None, Motion No. M-73517


Synopsis


Claimant’s motion for permission to file a late claim denied, without prejudice. Although the motion was properly filed with the Clerk of the Court, defendant established that the motion was not served on the Attorney General’s Office

Case Information

UID:
2007-044-579
Claimant(s):
TREMAINE PATTERSON
Claimant short name:
PATTERSON
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK1 1. The Court has, sua sponte, amended the caption to reflect the State of New York as the sole defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-73517
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
TREMAINE PATTERSON, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 26, 2007
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

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Decision

Claimant, an inmate proceeding pro se, moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant State of New York (defendant) opposes the motion, and argues that the motion was not served upon the Attorney General’s Office.

Claimant filed his motion (Motion No. M-73517) with the Clerk of the Court on June 5, 2007. Claimant included an affidavit of service attesting to his service of the “Notice of Intention and Permission to file a late Claim” on May 29, 2007, by certified mail, to the Attorney General’s Office (Department of Law) at the Capitol Building in Albany, NY. By letter dated June 6, 2007, the Clerk of the Court notified the parties that the return date for the motion was July 11, 2007. Assistant Attorney General (AAG) Roberto Barbosa advised the Court that as of July 10, 2007, the Attorney General’s Office had not been served with the motion. The Court provided AAG Barbosa with a copy of the aforementioned affidavit of service, and granted defendant an adjournment to allow an investigation as to whether the motion papers were received.

Defendant has since provided the affidavit of Janet A. Barringer, a Senior Clerk in the Albany Office of the Attorney General. Ms. Barringer avers that she ascertained information from the Office of the Clerk of the Court concerning the proposed claim, and then searched the electronic database by both claimant’s name and DIN, and by the incident date. Ms. Barringer states that although the Attorney General’s Office received a notice of intention to file a claim on June 8, 2007, she found no record of a motion for permission to file a late claim. In reply, claimant argues that his certified mail receipt established “uncontroverted service” of both the notice of intention and permission to file a late claim.

Based upon the papers submitted, the Court finds that claimant’s motion for permission to file a late claim, although properly filed with the Clerk of the Court, was not served upon the Attorney General as required by Court of Claims Act § 10 (6). Accordingly, this motion is denied, without prejudice to claimant filing and serving a new motion requesting permission to file a late claim.[2]

October 26, 2007
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion:

1) Motion for Permission to File a Late Claim filed on June 5, 2007, and attached exhibits.


2) Letter from claimant dated July 17, 2007, and attached certified mail receipt.

3) Affirmation in Opposition of Roberto Barbosa, AAG, dated July 23, 2007, and attached exhibits.


4) Claimant’s Reply filed on August 10, 2007.


[2]. Claimant alleges that on December 9, 2006, he was injured when he bit into a sharpened metal screw while eating coffee cake. Because the underlying statute of limitations for a cause of action in negligence is three years (see CPLR 214 [5]), claimant has adequate time within which to make another motion for permission to file a late claim (see Court of Claims Act § 10 [6]; cf. Tislon v State of New York, Ct Cl, June 15, 2004, Minarik, J., Claim No. None, Motion No. M-67762 [UID # 2004-031-063]).