New York State Court of Claims

New York State Court of Claims

McQUILKIN v. STATE OF NEW YORK, #2009-018-037, Claim No. 116009, Motion Nos. M-76690, CM-76873


Synopsis


Motion to amend is unnecessary as brought before Defendant’s time to serve responsive pleading pursuant to CPLR 3211(f) has expired. Defendant’s cross-motion to dismiss new causes of action is granted, as accrual was more than 90 days before service and filing of original claim.

Case Information

UID:
2009-018-037
Claimant(s):
RUDOLPH McQUILKIN
Claimant short name:
McQUILKIN
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116009
Motion number(s):
M-76690
Cross-motion number(s):
CM-76873
Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
RUDOLPH McQUILKINPRO SE
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New York
By: THOMAS TRACE, ESQUIRE of Counsel
Third-party defendant’s attorney:

Signature date:
August 12, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings a motion to amend the claim. Defendant opposes the motion and brings a cross-motion to dismiss the new causes of action if the claim is amended. A brief review of the history of this claim is warranted. The claim was filed on October 28, 2008, and served on Defendant on October 20, 2008, asserting a bailment claim for lost property placed in the custody of the Defendant which was never returned. Defendant made a motion to dismiss (M-75937) that claim which was denied by Decision and Order filed April 14, 2009. Notice of Entry was served upon Claimant on April 29, 2009. Defendant served an Answer to the claim on May 6, 2009. Claimant filed this motion seeking to amend the claim on April 27, 2009. The proposed amendment seems to seek relief for improper confiscation of his legal material, improper charges of wrongdoing, kidnaping, and loss of additional personal property. These new allegations stem from Defendant’s actions from July 16, 2007 through (approximately) March 4, 2008.

Uniform Rules for the Court of Claims, § 206.7 (b) provides:
Pleadings may be amended in the manner provided by CPLR 3025, except that a party may amend a pleading once without leave of court within 40 days after its service, or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it. Where a response to an amended or supplemental pleading is required, it shall be made within 40 days after service of the amended or supplemental pleading to which it responds.
Here, Defendant’s time to answer the claim was extended by its motion to dismiss until ten days after service of notice of entry of the order on the motion (see 22 NYCRR § 206.7[a] and CPLR 3211[f]). The motion to amend (the proposed amended claim) was served before Defendant served Claimant with a copy of the notice of entry of the Decision and Order on the prior motion to dismiss (M-75937); and thus, before the period for Defendant to respond to the claim expired. Therefore, Claimant had the right to amend his pleading without leave of the Court at the time he made this motion. Accordingly, Claimant’s amended pleading, labeled “Notice of Motion for an Amended Pleading” shall be deemed filed as of April 27, 2009, the date the motion was filed. Defendant shall serve its responsive pleading to the amended claim in accordance with 22 NYCRR § 206.7(a) and CPLR 3211(f).
Defendant cross-moves to dismiss the newly asserted causes of action in Claimant’s amended claim on the ground of untimeliness. The new allegations asserted by Claimant’s amendments involve allegations which seem to embellish the descriptions of how or when Claimant’s property was lost as interposed in the original claim, and although it seems he may be asserting a loss of four additional bags he has alleged no additional damages. However, in addition to those allegations, Claimant includes claims of kidnaping, improper misbehavior charges, and imposed sanctions. These new allegations all arose at least 10 months before Claimant served and filed the original claim and would be untimely pursuant to Court of Claims Act §§ 10(3) and (3-b).
Accordingly, Defendant’s motion is granted to the extent that Claimant is asserting any causes of action for kidnaping , improperly imposed misbehavior charges, or sanctions,[1] they are dismissed as untimely.
August 12, 2009
Syracuse, New York
HON. DIANE L. FITZPATRICK
Judge of the Court of Claims
The Court has considered the following documents in deciding this motion:
M-76690
1. Notice of Motion.
2. Unsworn, unsigned detailed circumstances of proposed relief, purportedly from
Claimant, with exhibits attached thereto.
CM-76873
3. Notice of Cross-Motion.
4. Affirmation of Thomas Trace, Esquire, of counsel to the Office of the Attorney General.

[1].The Court would also lack subject matter jurisdiction over any matters involving the discretionary decisions of prison personnel involving internal prison discipline (see Arteaga v State of New York, 72 NY2d 212).