New York State Court of Claims

New York State Court of Claims

PENA v. THE STATE OF NEW YORK, #2008-010-009, Claim No. NONE, Motion No. M-74713


Synopsis


Claimant’s motion to deem his notice of intention a claim is granted.

Case Information

UID:
2008-010-009
Claimant(s):
ROBERT PENA
Claimant short name:
PENA
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-74713
Cross-motion number(s):

Judge:
Terry Jane Ruderman
Claimant’s attorney:
ROLF M. THORSEN, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General for the State of New YorkBy: Rachel Zaffrann, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 2, 2008
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers numbered 1-3 were read and considered by the Court on claimant’s motion to deem his notice of intention a claim:
Notice of Motion, Claimant’s Supporting Affidavit, Attorney’s Supporting Affirmation and Exhibits...........................................................................................1

Defendant’s Affirmation in Opposition...................................................................2

Attorney’s Reply Affirmation...................................................................................3

On December 3, 2005, claimant timely and properly served defendant with a notice of intention (Claimant’s Ex. B) alleging that:
“[o]n October 1, 2005 at approximately 6:32 p.m., while claimant was operating a motorcycle on Route 9W southbound, at or near its intersection with Old 304 - (Rock-cut), in the Town of Haverstraw, County of Rockland, State of New York, he was caused to be thrown off the motorcycle as the result bumps, holes, depressions or other dangerous and defective conditions on the roadway, resulting in serious personal injuries to the claimant.”

(Claimant’s Ex. A). A claim, however, was not filed within two years after accrual as mandated by Court of Claims Act §10(3). Accordingly, claimant seeks an order pursuant to Court of Claims Act §10(8)(a) deeming his notice of intention a claim.[1]

Court of Claims Act § 10(8)(a) provides:

“[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 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.”



Preliminarily, claimant’s application is made within the three year statute of limitations applicable to personal injury claims as set forth in CPLR 214. Additionally, the Court finds that the notice of intention contains facts sufficient to constitute a claim as it sets forth the nature of the claim, the time and place it arose, and the injuries allegedly sustained (Court of Claims Act §11[b]) (see Morris v State of New York, 27 AD3d 282 [notice of intention contained sufficient facts and court rejected defendant’s contention that claimant failed to state nature of claim]). Finally, there has been no showing of prejudice to defendant in treating the notice of intention a claim and the Court does not find persuasive defendant’s argument that claimant failed to identify a theory of liability.

Accordingly, claimant’s motion is GRANTED and claimant is directed to file, with the Clerk of the Court, a copy of the served notice of intention, together with the filing fee of $50.00, within 30 days of the filed-stamped date of this Decision and Order.


May 2, 2008
White Plains, New York
HON. TERRY JANE RUDERMAN
Judge of the Court of Claims




[1]. Notably, claimant has expressly stated in his papers that he is not seeking relief pursuant to Court of Claims Act §10(6) and is not seeking leave to serve and file a late claim.