New York State Court of Claims

New York State Court of Claims

JAMES v. STATE OF NEW YORK, #2008-018-607, Claim No. NONE, Motion No. M-74101


The Court is without jurisdiction to permit a late filing if the underlying cause of action is time-barred. Based upon the foregoing, Movant’s application is DENIED.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

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

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
By: G. LAWRENCE DILLON, ESQUIREAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 4, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Movant has brought this motion seeking permission to file a late claim pursuant to Courtof Claims Act §10(6). Defendant opposes the motion.

A proposed claimant who fails to timely file and serve a claim or serve a notice of intention may be permitted, upon application and in the discretion of the court, to file a claim which complies with § 11 of the Court of Claims Act, at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the CPLR (Court of Claims Act § 10[6]).

The proposed claim[1] seeks damages for the alleged intentional tort and negligence of several correction officers in their treatment of movant, an inmate at Riverview Correctional Facility on Thursday, February 27, 2003. The proposed claim alleges that certain named correction officers dragged movant over some chairs and into another room and then continued to drag him to the Special Housing Unit which allegedly has caused movant to suffer personal injuries including a hernia.

Defendant argues that the application to file a late claim is untimely under article 2 of the CPLR, whether the proposed claim is found to be sounding in intentional tort, as an assault, or in ordinary negligence.

CPLR 214(5) provides that an action for personal injuries must be commenced within three years from the date of accrual. CPLR 215 provides that an action sounding in assault or battery must be commenced within one year from the date of accrual. An action accrues when there is a legal right to relief, that is when the claim becomes enforceable, and a tort becomes enforceable when all of its elements can be truthfully asserted (LaBello v Albany Medical Ctr. Hosp., 85 NY2d 701, 706; Aetna Life & Cas. Co. v Nelson, 67 NY2d 169; Vigilant Ins. Co. of Am. v Housing Auth. of the City of El Paso, Tex., 87 NY2d 36). Here, all of the necessary facts occurred on February 27, 2003, which is the date of accrual.

A motion is made when it is served (CPLR 2211). To be timely, an application for permission to file a late claim sounding in an intentional tort which accrued on February 27, 2003, would have had to be served by February 27, 2004. To assert a negligence cause of action, a timely application for permission to file a late claim would have had to be served by February 27, 2006. In this case, movant served the motion for permission to file a late claim on October 1, 2007. By any scenario the application is untimely. As a result, the Court need not reach the merits of the motion. The Court is without jurisdiction to permit a late filing if the underlying cause of action is time-barred (see Arbor-Hill Partners v New York State Commr. of Hous. & Community Renewal, 267 AD2d 675).

Based upon the foregoing, movant’s application is DENIED.

February 4, 2008
Syracuse, New York

Judge of the Court of Claims

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

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

Unsworn statement of Sherron James, Pro Se, in support,

with attachments..........................................................................2

Affirmation in Opposition of G. Lawrence Dillon, Esquire,

Assistant Attorney General, with attachments.............................3

[1].Which apparently was not attached to defendant’s copy of the motion.