New York State Court of Claims

New York State Court of Claims

MURPHY v. THE STATE OF NEW YORK, #2008-037-026, Claim No. NONE, Motion No. M-75077


Synopsis


Case Information

UID:
2008-037-026
Claimant(s):
THEODORE MURPHY
Claimant short name:
MURPHY
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-75077
Cross-motion number(s):

Judge:
JEREMIAH J. MORIARTY III
Claimant’s attorney:
Theodore Murphy, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo
New York State Attorney General
By: Gregory P. MillerAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 10, 2008
City:
Buffalo
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following were read and considered with respect to Movant’s motion for permission to file and serve a late claim:
1. Notice of motion and affidavit of pro se Movant, Theodore Murphy, sworn to May

23, 2008;

2. Opposing affirmation of Assistant Attorney General Gregory P. Miller dated July 1,

2008, with annexed Exhibit A[1].

On June 2, 2008, Movant filed this motion for leave to late serve and file a claim for personal injuries which allegedly occurred in November of 2005 while Movant was incarcerated at Gowanda Correctional Facility when he allegedly contracted Legionnaires’ disease. These same facts were the basis of an earlier motion by Movant (M-74244) for permission to late serve and file a claim. By this Court’s prior decision and order, Movant was granted permission to serve and file a late claim asserting a single negligence cause of action (see Murphy v State of New York, March 14, 2008, Moriarty, J., Claim No. None, Motion No. M-74244, UID # 2008-037-009).[2] In fact, on June 2, 2008, Movant filed claim no. 115313, together with this motion. Because Movant’s present motion appears to request the same relief that was granted, at least in part, by this Court’s prior decision and order, Movant’s present motion M-75077 is denied as moot.

Movant’s present motion also contained an application for fee reduction pursuant to CPLR § 1101 (f).[3] This application was retained in Albany and was addressed by a separate order.

Based on the foregoing, it is hereby

ORDERED, that Movant’s motion M-75077 for leave to late serve and file a claim is denied as moot.



July 10, 2008
Buffalo, New York

HON. JEREMIAH J. MORIARTY III
Judge of the Court of Claims




[1]. Assistant Attorney General Miller annexed to his affirmation as Exhibit A a copy of the affidavit served in support of Movant’s motion to late file. This affidavit not only appears to be incomplete, but it is markedly different from the affidavit filed with the original motion.
[2]. This and other unreported Court of Claims decisions may be found on the Court’s website at www.nyscourtofclaims.state.ny.us.
[3]. Contrary to Defendant’s assumption, Movant’s application for a fee reduction was not coupled with a request for the appointment of counsel.