New York State Court of Claims

New York State Court of Claims

BOTTORFF v. STATE OF NEW YORK, #2008-039-075, Claim No. 111588, Motion Nos. M-72430, M-72432, M-72433


Synopsis


Claimant’s motions to vacate the order dismissing claim no. 111588 and restoring the claim to the Court’s calendar, for a default judgment against the two defendants who failed to serve an answer and for an order granting him permission to file a late claim or an amended claim are denied. The named defendants that claimant seeks redress against - “Herkimer County, New York, Office of the Herkimer County Sheriff, Unknown Officer(s) in their personal and private capacity, Unknown officer(s) in their official and public capacity, Does and Roes 1 through 20, Unknown Municipal Corporations 1 through 20” - have no obligation to submit an answer to the claim. For the same reason, claimant’s request for permission to file a late claim or an amended claim must also be denied

Case Information

UID:
2008-039-075
Claimant(s):
CHET ALLEN BOTTORFF
Claimant short name:
BOTTORFF
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK1 1.The Court has, sua sponte, amended the caption to reflect the State of New York as the only proper Defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111588
Motion number(s):
M-72430, M-72432, M-72433
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Chet Allen Bottorff, pro se
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Joel MarmelsteinAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 5, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claim No. 111588 alleges numerous causes of action, all of which arose during the period between October 7, 2004 and November 5, 2004 when claimant was incarcerated at the Herkimer County Correctional Facility. The claim was dismissed on the ground that none of the allegations set forth a cause of action against the State of New York (see Bottorff v State of New York, UID #2006-028-575, Claim No. 111588, Motion Nos. M-71187, CM-71269 [Ct Cl, July 27, 2006], Sise,

P.J.).

Claimant now moves the Court for an order vacating the order dismissing claim no. 111588 and restoring the claim to the Court’s calendar on the ground that “two defendants of the three defendants in the above captioned claim have been served and have not answered the instant claim” (Motion No. M-72430). For similar reasons, claimant also moves the Court for a default judgment against the two defendants who failed to serve an answer (see Motion No. M-72432) and for an order granting him permission to file a late claim or an amended claim (see Motion No. M-72433).

Initially, the Court notes that claimant’s motion papers do not contain a copy of the proposed claim, as required by Court of Claims Act § 10 (6). Nonetheless, according to claimant’s notice of motion, the named defendants to which claimant now makes reference include “Herkimer County, New York, Office of the Herkimer County Sheriff, Unknown officer(s) in their personal and private capacity, Unknown officer(s) in their official and public capacity, Does and Roes 1 through 20, Unknown Municipal Corporations 1 through 20" (see e.g. Claimant’s First Notice of Motion to Renew and Vacate Dismissal, Motion No. M-72430). It is well settled that the Court of Claims does not have jurisdiction over any of the foregoing entities or individuals (see Beriguete v Dept. of Corrections, UID # 2006-041-003, Motion No. M-72056 [Ct Cl, September 12, 2006], Milano, J.). Thus, the named defendants that claimant now seeks redress against have no obligation to submit an answer to the claim.[2] For the same reason, claimant’s request for permission to file a late claim or an amended claim must also be denied.

Accordingly, Motion Nos. M-72430, M-72432 and M-72433 are hereby denied.


May 5, 2008
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:

  1. Notice of Motion (Motion No. M-72430) of Chet Allen Bottorff, pro se, with annexed exhibits;
  1. Notice of Motion (Motion No. M-72432) of Chet Allen Bottorff, pro se;
  1. Notice of Motion (Motion No. M-72433) of Chet Allen Bottorff, pro se;
  1. Affidavit in Opposition to Motion No. M-72430 of James J. Burns, Esq.;
  1. Affirmation in Opposition to all motions of Joel L. Marmelstein, AAG;
  1. Affidavit in Support of Motions of Chet Allen Bottorff, pro se; and
  1. Memorandum of Points and Authorities (“Claimant’s Third Argument”) of Chet Allen Bottorff, pro se.

[2]. The submission of James J. Burns, Esq., whose firm represents Herkimer County and the Herkimer County Sheriff, notes that claimant has also instituted suit against both of his clients in Herkimer County Supreme Court.