Defendant's cross-motion to dismiss unserved claim was granted. Claimant's motion for default was treated as one for an extension of time to comply with the service and filing requirements of the Court's prior order granting late claim relief.
|Claimant short name:||RODRIGUEZ|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Jonathan Rodriguez, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 22, 2009|
|See also (multicaptioned case)|
Claimant, an inmate proceeding pro se, moves for a default judgment (Motion No. M-76736). The defendant cross-moves to dismiss the claim (Motion No. CM-76770) alleging the claimant failed to serve and file the claim in accordance with this Court's prior Decision and Order granting late claim relief.
Claimant alleges that on October 4, 2006 he was assaulted by another inmate with a razor-type weapon due to the Department of Correctional Services' negligent failure to provide adequate security and supervision at Great Meadow Correctional Facility.
By Decision and Order dated May 15, 2007 this Court granted claimant's application for late claim relief pursuant to Court of Claims Act § 10 (6) and directed the claimant to "file and serve a claim in the form proposed and to do so in conformity with the requirements of Court of Claims Act §§ 10 and 11 within 45 days of the date on which this decision and order is filed" (Rodriguez v State of New York, Ct Cl, May 15, 2007 [Motion No. M-72995, UID # 2007-015-189] Collins, J) The Decision and Order was filed on June 21, 2007 and the claim was filed on September 21, 2007, more than one month after expiration of the 45-day period prescribed in the decision and order granting claimant's late claim application.
In further support of the cross-motion for dismissal, defense counsel avers that in addition to filing the claim beyond the 45-day period established by the Court, a search of the records maintained by the Attorney General's office indicates that the claimant failed to serve a copy of the claim upon the Attorney General.
Defendant's cross-motion to dismiss the claim is supported by the affidavit of Janet A. Barringer, Senior Clerk in the Albany Office of the Attorney General, in which Ms. Barringer avers that she has searched the electronic and paper files maintained by the Attorney General's office and found no record that this claim was served upon the Attorney General.
Court of Claims Act § 11(a) (i) provides, in relevant part, that a copy of the claim "shall be served upon the attorney general . . . either personally or by certified mail, return receipt requested . . . " The Court of Appeals has noted in interpreting this provision that "statutory requirements conditioning suit must be strictly construed" (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 ). Here, it is undisputed that the claim was not served upon the Attorney General as required. As a result, defendant's cross-motion is granted.
The Court finds it appropriate under the circumstances to treat the claimant's motion for default judgment as one for an extension of time to comply with the prior Decision and Order granting claimant permission to serve and file a late claim. In support of its cross-motion, defendant submitted a letter from this Court responding to correspondence (dated September 26, 2007) received from the claimant requesting an extension of time to serve and file his claim. In its letter, the Court advised the claimant "your request for an extension of time to file and serve your claim must be made by motion on notice to the Office of the Attorney General" (defendant's Exhibit A). Review of the Court's file reflects that no such motion was made. The file also reflects various difficulties encountered by the claimant in filing and serving the claim and the claimant's fundamental misunderstanding of what he was required to serve pursuant to the Decision and Order granting his late claim motion.
It has been held an improvident exercise of discretion to deny an application for an extension of time in which to comply with a prior Court Order granting permission to serve and file a late claim where no substantial prejudice to the State would result (Matter of Yackle v State of New York, 21 AD3d 1283 ; Griffin v John Jay Coll., 266 AD2d 16 ). In the Court's view the defendant will suffer no substantial prejudice in the event an extension of time to serve and file the claim is granted. While such relief may not be granted where the motion is made subsequent to the expiration of the analogous statute of limitations applicable to "a like claim against a citizen of the state" (Court of Claims Act § 10 ; Roberts v City Univ. of N.Y., 41 AD3d 825 ), no such limitation on the Court's discretionary authority exists where the motion is made within the statutory period (Thompson v State of New York, 258 App Div 758 (1939); Jenkins v State of New York, 119 Misc 2d 144 ; CPLR 214 ).
Claimant's motion, being treated as one for an extension of time to serve and file the claim, is granted and the claimant is directed to file the claim in the Office of the Clerk of the Court of Claims and serve the claim on the Attorney General in accordance with Court of Claims Act §§ 11 and 11-a within 30 days of the date this Decision and Order is filed.
Defendant's cross-motion for an Order dismissing the instant claim (Claim No. 114260) is granted and the claim is dismissed.
September 22, 2009
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Motion No. M-76736
Cross-Motion No. CM- 76770