New York State Court of Claims

New York State Court of Claims

PEREZ v. THE STATE OF NEW YORK, #2008-038-624, , Motion No. M-75273


Motion for permission to file a late claim denied. Proposed claim lacks the appearance of merit because it alleges negligence of only the Albany Police Department and Albany Medical Center, entities over which the Court of Claims lacks jurisdiction

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:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michele M. Walls, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 7, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Movant seeks permission to file a late claim in which he alleges that he sustained injuries on June 30, 2007 due to the “failure of the Albany Police Department and medical personnel to protect claimant from bodily injury and to provide adequate medical care” (Notice of Motion).[1] The proposed claim asserts that movant was arrested and placed into a vehicle with his hands restrained behind his back, and that he fell and sustained injury to his left eye and shoulder when the vehicle made a hard right turn. The proposed claim also alleges that he received “minimal treatment” for his injuries at Albany Medical Center, and that several months later it was determined that he had a rotator cuff injury. Movant moves for permission to file and serve a late claim; respondent, State of New York, opposes the motion. In deciding a motion to file a late claim, Court of Claims Act § 10 (6) requires the Court to consider, among other factors, “whether the claim appears to be meritorious.” Here, the motion to file and serve a late claim cannot be granted insofar as the Court’s subject matter jurisdiction is limited to claims against the State of New York, its employees, and other entities not relevant to this claim (see Court of Claims Act § 9). A municipal police department and its employees are not entities or individuals for whose acts the State may be held liable (see Fisher v State of New York, 10 NY2d 60 [1961]; Whitmore v State of New York, 55 AD2d 745, 746 [3d Dept 1976], lv denied 42 NY2d 810 [1977]; Murph v State of New York, 98 Misc 2d 324, 326 [Ct Cl 1979]; Selby v State of New York, UID #2007-038-534, Claim No. 113128, Motion Nos. M-72876, M-72977, DeBow, J. [May 11, 2007]). It is clear from the papers submitted in support of the motion that movant alleges negligence by the Albany Police Department, and apparently by personnel at Albany Medical Center, but he makes no allegation against any party for whom the State might be liable. Thus, the proposed claim does not have the requisite appearance of merit because it fails to state a claim over which the Court of Claims has jurisdiction (see Ricketts v State of New York, UID #2006-016-048, M-71675, Marin, J. [Aug. 10, 2006]; Jones v State of New York, UID # 2001-014-529, Motion No. M-62917, Nadel, J. [Apr. 10, 2001]). Accordingly, it is

ORDERED, that Motion No. M-75273 is DENIED.

November 7, 2008
Albany, New York

Judge of the Court of Claims

Papers considered

(1) Notice of Motion, filed July 11, 2008;

(2) Motion for Permission to File a Late Claim, dated June 25, 2008, with attachments;

(3) Affirmation in Opposition to Claimant’s Motion of Michele M. Walls, AAG,

dated August 15, 2008, with Exhibit A.

[1].Claimant’s Notice of Motion indicates that the proposed claim is brought “pursuant to Section 50(e) [sic] of the General Municipal Law.” The Court notes that General Municipal Law § 50-e governs claims brought against municipalities, and not the State of New York.