New York State Court of Claims

New York State Court of Claims

MARRERO v. STATE OF NEW YORK, #2007-045-026, , Motion No. M-73938


Case Information

1 1.The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended, sua sponte, to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

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

Claimant’s attorney:
Nelson M. Stern, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Anne C. Leahey, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 20, 2007

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered on this motion: Claimant’s Notice of Motion, Claimant’s Proposed Claim, Attorney’s Affidavit, Claimant’s Affidavit with annexed Exhibits 1 and 2, Defendant’s Affirmation in Opposition with annexed Exhibit A and Claimant’s Reply Affidavit.

Claimant, Carlos Marrero, has brought this motion seeking an order granting permission to treat his Notice of Intention as a Claim pursuant to Court of Claims Act (CCA) § 10(8). Claimant served a Notice of Intention upon defendant, the State of New York, on September 28, 2006[2] in which he alleged that he was, inter alia, falsely arrested by a New York State Trooper on July 24, 2006. Claimant filed the present motion on September 7, 2007. CCA § 10(8) provides that a claimant who timely served a Notice of Intention may apply to the Court for permission to treat the Notice of Intention as a Claim. CCA § 10(8) states that the Court shall not grant the 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.

To the extent claimant is seeking to assert causes of action against defendant for assault and battery, false arrest/false imprisonment and malicious prosecution they are time-barred and beyond this court’s authority to permit (Critton v State of New York, 12 AD3d 216 [1st Dept 2004]; see also CPLR 215[3] and CCA § 10[3-b]).

In regard to any alleged claims of negligence the Court finds it significant that the Notice of Intention attached to claimant’s motion papers is incomplete (see Cl Exh 1). It is axiomatic that this Court cannot permit the conversion of a Notice of Intention which has not been submitted to the Court in its entirety. Additionally, claimant is not currently time-barred from serving and filing a Claim relating to any claims of negligence which may have been properly presented in the Notice of Intention (see CCA §§ 10[3] and 11).

Finally, claimant has submitted a detailed “proposed claim” with his papers, however, a proposed claim is properly associated with a motion to file a late claim[3] as opposed to the present motion. Claimant has repeatedly stated throughout his papers that the relief he is requesting is for the Notice of Intention to be treated as a Claim.[4]

Therefore, for the foregoing reasons, claimant’s motion is denied.

November 20, 2007
Hauppauge, New York

Judge of the Court of Claims

[2].Defendant conceded that it was served with the Notice of Intention in this matter on September 28, 2006.
[3].A motion to file a late claim for the claims of negligence would be premature at this time.
[4].In the attorney’s affidavit the requested relief is that the “Clerk grant the Application for Default Judgment.”