New York State Court of Claims

New York State Court of Claims

BERMUDEZ v. THE STATE OF NEW YORK, #2009-015-116, Claim No. NONE, Motion No. M-75644


Pro Se inmate filed to establish entitlement to relief under Court of Claims Act § 10 (8). Failure to establish proper service of the notice of intention as well as the applicability of the tolling provision set forth in CPLR 205(a) was fatal.

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:
Isaias Bermudez, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Stephen J. Maher, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 15, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Movant, an inmate proceeding pro se, moves to treat his notice of intention to file a claim as a claim pursuant to Court of Claims Act §§ 10 (3), (8) (b) and CPLR 205 (a). The State opposes the motion on the grounds that movant failed to append the notice of intention to his motion papers and, in any event, the Court lacks discretion to grant the application as the proposed claim is time barred. Court of Claims Act § 10 (8) (a) provides that no application to treat the notice of intention as a claim shall be granted unless:
"it is made upon motion before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules; the notice of intention was timely served, and contains facts sufficient to constitute a claim; and the granting of the application would not prejudice the defendant."
The movant failed to include the notice of intention which forms the basis of his motion as part of the motion papers. While a copy of the notice was provided to the Court subsequent to the return date of the motion, movant failed to submit an affidavit of service establishing proper service of the notice of intention (see Fulton v State of New York, 35 AD3d 977 [2006], lv denied 8 NY3d 809 [2007])[1].

As to the application of CPLR 205 (a), movant failed to establish the date on which the prior federal action was dismissed or otherwise provide a copy of the order of dismissal. The recommendation of the Magistrate Judge is insufficient for this purpose and the movant has, therefore, not established his right to invoke the tolling provisions of CPLR 205 (a).

The notice of intention herein relates alleged instances of intentional and negligent conduct occurring in July and August 2005. The instant motion was filed with the Court on September 11, 2008. As the claims asserted in the notice of intention were otherwise barred by the applicable statute of limitations at the time the motion was made (see CPLR § § 214, 215), the movant's failure to establish his entitlement to recommencement pursuant to CPLR 205 (a) is fatal.

Accordingly, the motion to treat movant's notice of intention as a claim is denied.

January 15, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion filed September 11, 2008;
  2. "Affirmation" of Isaias Bermudez sworn to September 6, 2008;
  3. Memorandum of Law of Isaias Bermudez sworn to September 6, 2008 with exhibit;
  4. Affirmation of Stephen J. Maher dated November 3, 2008.

[1].The notice of intention belatedly submitted by the movant bears a stamp indicating receipt by the Office of the Attorney General on September 22, 2005.