New York State Court of Claims

New York State Court of Claims

THOMPSON v. THE STATE OF NEW YORK, #2008-044-577, Claim No. None, Motion No. M-75176


Synopsis


Claimant’s motion to file and serve a late claim denied, without prejudice. The failure to include a proposed claim with the motion papers is fatal

Case Information

UID:
2008-044-577
Claimant(s):
DAVID THOMPSON
Claimant short name:
THOMPSON
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-75176
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
DAVID THOMPSON, pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Roberto Barbosa, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
September 9, 2008
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)

.
Decision

Claimant moves for permission to file a late claim pursuant to Court of Claims Act § 10 (6). Defendant State of New York (defendant) opposes the motion.

This motion is procedurally flawed and must be denied. Court of Claims Act

§ 10 (6) requires that a copy of the proposed claim containing all of the information set forth in Court of Claims Act § 11 accompany a motion for leave to file a late claim. Because claimant has failed to attach the proposed claim to his motion papers, this motion is denied, without prejudice to claimant filing and serving a new motion requesting permission to file a late claim (Court of Claims Act § 10 [6]; see Davis v State of New York, 28 AD2d 609, 610 [1967] [addressing Court of Claims Act former section 10 (5)]; Sanchez v State of New York, Ct Cl,

Dec. 11, 2007, Scuccimarra, J., Claim No. None, Motion No. M-74058 [UID # 2007-030-581]; Young v State of New York, Ct Cl, Dec. 11, 2003, Minarik, J. Claim No. 107762, Motion No.

M-66910 [UID # 2003-031-104]).[1]


September 9, 2008
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on claimant’s motion:

1) Notice of Motion filed on June 30, 2008; Affidavit of David Thompson sworn to on June 17, 2008.

2) Affirmation in Opposition of Roberto Barbosa, Assistant Attorney General, dated July 18, 2008.


[1]. Claimant alleges that on February 15, 2008, he was assaulted by two correction officers at Elmira Correctional Facility. The underlying statute of limitations for a cause of action based upon an intentional tort (assault) is one year (see CPLR 215 [3]), and claimant therefore has adequate time within which to make another motion for permission to file a late claim in conformance with the statutory requirements (see Court of Claims Act § 10 [6]; cf. Nash v State of New York, Ct Cl, Apr. 1, 2005, Lebous, J., Claim No. None, Motion No. M-69854 [UID # 2005-019-524]).