New York State Court of Claims

New York State Court of Claims

BELLAMY v. THE STATE OF NEW YORK and NYS DEPARTMENT OF CORRECTIONAL SERVICES, #2008-042-514, Claim No. 114071, Motion Nos. M-73931, CM-74316


Synopsis


Defendant moves to dismiss this claim pursuant to CPLR 3211 (a) (2) and (8) for lack of personal and/or subject matter jurisdiction. Claimant cross-moved for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Due to discovery of additional facts concerning procedural aspects of this claim, the motions by both parties are moot. Therefore, the motion to dismiss the claim is withdrawn and the cross-motion for permission to file a late claim is dismissed as moot.

Case Information

UID:
2008-042-514
Claimant(s):
ANTWAN BELLAMY
Claimant short name:
BELLAMY
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK and NYS DEPARTMENT OF CORRECTIONAL SERVICES
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114071
Motion number(s):
M-73931
Cross-motion number(s):
CM-74316
Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
DAVID SEGAL, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 30, 2008
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant moved for an order dismissing the claim, pursuant to CPLR 3211 (a) (2) and (8) for lack of personal and/or subject matter jurisdiction over the defendant. Claimant cross-moved for permission to late file a claim, pursuant to Court of Claims Act § 10 (6). The court has considered the following papers:
1. Pre-Answer Notice of Motion to Dismiss Claim, filed August 31, 2007
2. Affirmation of Joel L. Marmelstein, Esq., dated August 28, 2007
3. Affidavit of Janet A. Barringer, sworn to August 10, 2007
4. Affidavit of Kathleen Kellner, sworn to August 24, 2007
5. Exhibits A - D, annexed to the moving papers
6. Notice of Cross-Motion, filed December 10, 2007
7. Affidavit of Antwan Bellamy, sworn to November 1, 2007
8. Affirmation of David Segal, Esq., dated December 4, 2007
9. Exhibits 1 - 8, annexed to the cross-moving papers
10. Opposition affirmation of Joel L. Marmelstein, Esq., dated February 25, 2008
11. Exhibits A - F, annexed to the opposition affirmation
12. Reply affirmation of David Segal, Esq., dated May 2, 2008
13. Exhibits 1 - 4, annexed to the reply affirmation
14. Reply affirmation of Joel L. Marmelstein, Esq., dated May 15, 2008
15. Exhibit A, annexed to the reply affirmation

______________________________________

Due to the recent discovery of additional facts concerning procedural aspects of this case, the motions by both parties are now moot. In fact, the Attorney General withdraws the motion to dismiss the claim.

Claimant alleges that he was injured in an incident at the Riverview Correctional Facility in Odgensburg, New York on March 18, 2007. It is now acknowledged by the defense that a notice of intention to file a claim was properly served on defendant on April 30, 2007. Thereafter, in August 2007 a claim was filed and served upon the defendant.

Inasmuch as the defendant has acknowledged timely service of the notice of intention to file a claim, the claim itself is timely as well.

The motion to dismiss the claim is withdrawn and the cross-motion for permission to file a late claim is dismissed as moot. The Attorney General shall be permitted forty-five (45) days from the date of service of the decision and order herein within which to interpose an answer.



June 30, 2008
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims