New York State Court of Claims

New York State Court of Claims

D’ERRICO v. STATE OF NEW YORK, #2008-018-605, Claim No. 114188, Motion No. M-74082


Synopsis


The Court finds that Claimant served a timely notice of intention on January 29, 2007. Based upon the submissions before the Court, the claim filed on September 4, 2007 and served on the Assistant Attorney General on the same date is timely, as a notice of intention to file a claim was served upon the Assistant Attorney General within 90 days of the date of accrual. Defendant’s motion is denied

Case Information

UID:
2008-018-605
Claimant(s):
DAVID D’ERRICO
1 1.The caption has been amended by the Court sua sponte to reflect the State of New York as the only proper defendant.
Claimant short name:
D’ERRICO
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended by the Court sua sponte to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114188
Motion number(s):
M-74082
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
DAVID D’ERRICOPro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 4, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Defendant brings a pre-answer motion to dismiss the claim. Claimant opposes the

motion.

The claim seeks damages for “Faulty disiplinary [sic] hearings, with malicous [sic] intent, and negligence. Having served 40 days of false inprisonment [sic] in special housing unit.” The claim goes on to state that “Grievance system set up for this purpose failed. Untrianed [sic] staff in program setting that created situation, then DOC’s trained staff after incident happened to further deny claimant .” Claimant complains that he suffered mental distress and anguish, loss of privileges and removal from necessary programs and his “merit board date” was pushed back two months. (Claim ¶ 2). The claim alleges an accrual date of December 19, 2006.

Defendant attaches a copy of the claim which reflects it was received by the NYS Office of the Attorney General on September 4, 2007. Also attached is a copy of the envelope within which the claim was served upon the Attorney General which is also date-stamped received on September 4, 2007.

Defendant alleges in paragraph three of the supporting affirmation that “[a] notice of intention to file a Claim verified July 11, 2007 is attached as Exhibit “C.”” The affirmation indicates that the notice of intention was received by the Attorney General on August 2, 2007 (see Defendant’s supporting affirmation Page 4, ¶3). Defendant argues that the notice of intention was not received within 90 days from the date of accrual and therefore it is untimely.

Upon reviewing Exhibit C of Defendant’s moving papers, a copy of a notice of intention dated January 23, 2007 is attached with a date stamp that it was received in the NYS Office of the Attorney General on January 29, 2007. This notice of intention, although not identical to the claim, sets forth similar allegations with the same December 19, 2006, date of accrual (Defendant’s Supporting Affirmation, Exhibit C).

Claimant, in response to Defendant’s motion, states that he “filed a motion of intent against New York State Department of Corrections [sic] on January 29, 2007.” (D’Errico responding document ¶3). Presumably “notice of intention” was meant, and seems consistent with Exhibit C attached to Defendant’s motion papers. However, the claim itself refers to a notice of intention being served upon the Attorney General on August 2, 2007.

Court of Claims Act § 10(3) provides that a claim to recover damages for personal injuries, as a result of the negligence of an officer or employee of the State, shall be “filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after the accrual of such claim” (Court of Claims Act § 10[3]).

The Court finds that Claimant served a timely notice of intention on January 29, 2007 for his claims related to wrongful confinement, loss of privileges, and “good time,” allegedly due to the negligence of improperly trained employees. Based upon the submissions before the Court, the claim filed on September 4, 2007, and served on the Attorney General on the same date is timely, as to the allegations described above, as a notice of intention to file a claim was served upon the Attorney General within 90 days of the date of accrual. Defendant’s motion is denied.





February 4, 2008
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion....................................................................................1


Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General, in support, with exhibits attached thereto................................2


Answer to preanswer notice of motion to dismiss claim of

David D’Errico, in opposition................................................................3