New York State Court of Claims

New York State Court of Claims

LANG v. THE STATE OF NEW YORK, #2007-045-008, Claim No. None, Motion No. M-73138


Synopsis


motion to serve a late notice of intention

Case Information

UID:
2007-045-008
Claimant(s):
BELINDA LANG & PAUL M. LANG
Claimant short name:
LANG
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
None
Motion number(s):
M-73138
Cross-motion number(s):

Judge:
GINA M. LOPEZ-SUMMA
Claimant’s attorney:
Savitt, Krantz & Sellman, P.C.By: Harvey B. Savitt, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Lori L. Pack, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 7, 2007
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were reviewed by the Court on this motion: Claimants’ Notice of Motion, Claimants’ Affirmation with annexed Exhibits A-D, Defendant’s Affirmation in Opposition to the Claimants’ Motion to Late File a Claim and Claimants’ Reply Affirmation. Claimants, Belinda Lang and Paul Lang, have brought this motion pursuant to Court of Claims Act § 10(6) seeking an order granting permission to serve a late notice of intention to file a claim. Defendant, the State of New York, has opposed this application as if it was a motion requesting permission to file a late claim under Court of Claims Act § 10(6).

The underlying facts of this claim concern the allegedly improper incarceration of claimant, Belinda Lang, at the Suffolk County Correctional Facility. Claimant contends, inter alia, that she was sentenced under a plea agreement to thirty days in jail but was wrongfully detained for an additional four days after she completed her sentence at the Suffolk County Correctional Facility.

Claimants’ counsel states in his affirmation that he is making this application solely for the purpose of obtaining permission to serve a late notice of intention to file a claim. He explains that he is not seeking leave to file a claim at this time but is instead looking to extend the time to file a claim, if necessary, in this matter.

Court of Claims Act § 10(6) provides the Court with authority to permit the filing of a late claim only. There is nothing within the Court of Claims Act which confers upon the Court the power to permit the service of a late notice of intention to file a claim (Holmes v State of N.Y., Roswell Park Cancer Inst. Corp., 5 Misc 3d 446 [Ct Cl 2004]; Harter v State of New York, UID # 2006-009-067, Motion No. M-71990, Midey, J. [Ct Cl 2006]). Both parties to this action appear to misread the case of Matter of Gonzalez v State of New York, 299 AD2d 675 (3d Dept 2002) as support for their position that the Court has the authority to permit the late service of a notice of intention. In Gonzalez the claimant did in fact make an application to file a late notice of intention to file a claim, however, the lower court treated the motion as if it was an application to file a late claim. Thus, the lower court considered the statutory factors contained within Court of Claims Act § 10(6) in determining whether the claimant would be permitted to file the late claim. Similarly, the Appellate Division reviewed the lower court’s discretionary determination to deny claimant’s motion to file a late claim.

Court of Claims judges routinely treat improperly titled motions to file a late notice of intention as properly titled motions to file a late claim where it is clear both parties to the action have treated the motion as one to file a late claim pursuant to Court of Claims Act § 10(6). However, in this instance claimants have expressly stated that they are not seeking permission to file a late claim. Consequently, the Court will not treat it as such.

Accordingly, given this court’s lack of authority to grant the requested relief, claimants’ motion to serve a late notice of intention must be denied.

June 7, 2007
Hauppauge, New York

HON. GINA M. LOPEZ-SUMMA
Judge of the Court of Claims