New York State Court of Claims

New York State Court of Claims

WILLIAMS v. THE STATE OF NEW YORK, #2008-015-098, Claim No. NONE, Motion No. M-75413


Synopsis


Claimant's motion to file a late notice of intention, deemed one to file a late claim, was denied as unnecessary. Notice of intention was timely served.

Case Information

UID:
2008-015-098
Claimant(s):
DEREK WILLIAMS
Claimant short name:
WILLIAMS
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-75413
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant’s attorney:
Derek Williams, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Joan Matalavage, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 4, 2008
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Movant, an inmate proceeding pro se, seeks an Order granting him permission to file a late notice of intention to file a claim pursuant to Court of Claims Act § 10 (6), poor person status and the assignment of counsel pursuant to CPLR 1101. Court of Claims Act § 10 (6) provides the Court with the discretionary authority to permit the late filing of a claim where the movant fails to timely file or serve a claim or fails to timely serve a notice of intention to file a claim[1]. Late claim relief is unnecessary where a notice of intention to file a claim has been timely and properly served.

Movant indicates in his motion that a notice of intention to file a claim was served "by/on" April 8, 2008. The notice of intention submitted on the motion reflects that the claim arises from respondent's alleged failure to provide movant with certain necessary medication beginning on January 9, 2008 and continuing thereafter. In opposition to the movant's application, the respondent acknowledged receipt of the notice of intention to file a claim on March 31, 2008 and submitted a copy of the notice of intention together with the envelope in which it was mailed. The envelope reflects that the notice of intention was properly served by certified mail, return receipt requested, in accordance with Court of Claims Act § 11 (a), and was received by the Office of the Attorney General on March 31, 2008. Inasmuch as the notice of intention was properly served within ninety days of accrual as required by Court of Claims Act § 10 (3) movant may serve and file a claim within two years following the date the claim accrued (see Court of Claims Act § 10 [3]). The instant motion for late claim relief is therefore denied as unnecessary.

Movant's application for poor person status and the assignment of counsel is denied as premature. Movant should file a motion, affidavit or certification for a reduced filing fee upon the filing of the claim (see Court of Claims Act § 11-a; 22 NYCRR 206.5-b; CPLR 1101 [f]). Any request for poor person status and the assignment of counsel may thereafter be made by motion pursuant to CPLR 1101 and 1102.

Based on the foregoing, movant's application pursuant to Court of Claims Act § 10 (6) is denied as unnecessary and his application pursuant to CPLR 1101 is denied as premature.



December 4, 2008
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated July 31, 2008;
  2. Affidavit of Derek Williams sworn to July 16, 2008 with exhibits;
  3. Affidavit of Joan Matalavage sworn to August 25, 2008 with exhibit;
  4. Letter dated August 8, 2008 from Derek Williams with attachment.

[1]. Court of Claims Act § 10 (6) does not permit the late filing of a notice of intention to file a claim as requested by the movant.