New York State Court of Claims

New York State Court of Claims

PAYNE v. THE STATE OF NEW YORK, #2009-015-148, Claim No. 114216, Motion Nos. M-75990, CM-76129


Claimant's motion for summary judgment related to different claim and was denied. Defendant's cross-motion to compel acceptance of its answer was granted.

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:
Daren Antonio Payne, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Michael T. Krenrich, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
March 24, 2009
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant moves for summary judgment and the defendant cross-moves to compel acceptance of its answer pursuant to CPLR 3012 [d]. The claim which is the subject of these motions (claim number 114216) states the following:
"The Defendants(s) miscellaneous undertakes liability for underlying medical condition that left unattended poses a substantial risk of serious harm: The duty enjoined on Commissioner of Correction by former section 46 to protect and preserve health of prison inmates is on the Warden appointed by Commissioner and on physician in charge of prison appointed by Warden ...

On March 7, 2007 at 7:30 a.m. at Great Meadow Correctional Facility Behavioral Health Unit A-3 Cell defendants miscellaneous infliction of cruel unusual punishment deprivation human needs such air, food, water medical care, mental health and skin rash due to exposure to stain mattress, exposure to raw sewage, lack of drinkable water, inadequate ventilation excessive heat environmental health and safety."

In its Decision and Order filed November 25, 2008 the Court denied the defendant's motion to compel acceptance of its answer with leave to renew, indicating that although the defendant established a reasonable excuse for its delay in answering, it failed to establish a meritorious defense to the claim. As set forth in the Court's prior Decision and Order, the instant claim was served with a cover letter bearing the claim number of a separate claim filed by this claimant (claim number 114087), which stated the claimant's intention to "File Motion of Exhibits against the State of New York" and referred to the submission of the enclosed "Motion of Exhibits." Two of the documents enclosed were the notice of intention and the instant claim. The Court found defendant's failure to timely answer the claim reasonable given the circumstances related above.

Defendant now moves to renew its prior motion on the ground that it has meritorious defenses to this action. In this regard the defendant submits its proposed answer in which it raises as affirmative defenses the failure to properly serve the notice of intention to file a claim (first affirmative defense); improper service of the claim by ordinary mail (second affirmative defense) and that the claim is untimely as neither the claim nor the notice of intention were served within ninety days of the date the claim accrued (third affirmative defense) (defendant's Exhibit O). According to defense counsel, both the notice of intention as well as the claim were served by ordinary mail and received in the office of the Attorney General on September 18, 2007 (see defendant's Exhibit J). The incomplete affidavit of service attached to the claim/notice of intention appears to recite the fact of service by certified mail, return receipt requested. However, the envelope in which the documents were received by the Attorney General indicates only "Legal Mail" on the front thereof and displays none of the indicia of certified mail service. Thus, the defendant has satisfactorily established the potential merit of its defenses to this action. The defendant's cross-motion to compel acceptance of its answer is therefore granted.

Claimant's motion for summary judgment refers to the wrong claim. His motion is premised upon the facts set forth in claim number 114087, which involves a bailment claim for the loss of personal property following a fire in his cell. As claimant failed to support his motion relating to the instant claim by a copy of the pleadings and other evidence in admissible form as required, his motion for summary judgment is denied (see CPLR 3212[b]).

Based on the foregoing, defendant's cross-motion to compel acceptance of its answer is granted and the defendant is directed to serve and file its answer in the form proposed within fifteen days of the date this Decision and Order is filed. Claimant's motion for summary judgment is denied.

March 24, 2009
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 15, 2008;
  2. Affidavit of Daren A. Payne sworn to December 9, 2008 with exhibits;
  3. Notice of cross-motion dated January 16, 2009;
  4. Affirmation of Michael Krenrich dated January 16, 2009 with exhibits;
  5. Reply of Daren Antonio Payne dated January 26, 2009.