New York State Court of Claims

New York State Court of Claims

JENKINS v. THE STATE OF NEW YORK, #2009-030-542, Claim No. 115950, Motion Nos. M-76728, M-76182, CM-76360


Synopsis


Claim that was not served in accordance with decision and order granting late claim relief dismissed upon cross-motion by defendant; motion by claimant to deem the claim timely denied. Late claim relief granted (again).

Case Information

UID:
2009-030-542
Claimant(s):
MONARD JENKINS
Claimant short name:
JENKINS
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115950
Motion number(s):
M-76728, M-76182
Cross-motion number(s):
CM-76360
Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
MICHAEL SCOLNICK, P.C.BY: MICHAEL SCOLNICK, ESQ.
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: JEANE L. STRICKLAND SMITH, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
July 28, 2009
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on the motions submitted herein:

1,2 Notice of Motion [M-76182]; Affirmation on Motion to Deem Timely a Late Served Claim [Claim No. 115950] by Michael R. Scolnick, attorney for claimant and attached exhibits

3,4 Notice of Cross-Motion [CM-76360]; Affirmation in Support of Cross-Motion to Dismiss [Claim No. 115950] by Jeane L. Strickland Smith, Assistant Attorney General and attached exhibits

5,6 Notice of Motion [M-76728]; Affirmation in Support of Claimant’s Motion (1) To Modify (extending time for service, nunc pro tunc, by 5 days) previous Order of the Court granting leave to late serve claim or, in the alternative (2) for a new Order Granting Leave to Late Serve a Claim by Michael R. Scolnick, attorney for claimant and attached exhibits

7,8 Notice of Cross-Motion; Affirmation in Opposition to Motion to Modify Order permitting late service nunc pro tunc & Affirmation in support of motion to dismiss by Jeane L. Strickland Smith, Assistant Attorney General and attachments [treated as Opposition to Claimant’s Motion No. M-76728]

  1. Letter to attorneys from Chief Clerk dated July 2, 2009
  1. Affirmation by Michael R. Scolnick affirmed July 7, 2009
11-13 Filed papers: Claim Number 115950; Amended Answer to Claim Number 115950; Jenkins v State of New York, UID # 2008-030-551, Claim Number 115221, Motion Nos. M-75183, CM-75306 (Scuccimarra, J., August 19, 2008) and underlying papers
Cross-Motion [CM-76360] to dismiss Claim Number 115950
The cross-motion to dismiss by defendant is addressed first because it disposes of claim number 115950. The claim was to have been served and filed within 45 days of the filing date of the decision and order granting late claim relief. [See Jenkins v State of New York, UID # 2008-030-551, Claim Number 115221, Motion Nos. M-75183, CM-75306 (Scuccimarra, J., August 19, 2008)]. The decision and order was filed on September 2, 2008. Claim number 115950 was filed in the Office of the Chief Clerk on October 14, 2008, and was served on the Attorney General’s Office on October 20, 2008. The claim was not, therefore, served within the time constraints granted by leave of court, the defense was raised, and a cross-motion duly made.

Defendant’s cross-motion [CM-76360] to dismiss is in all respects GRANTED, and claimant’s motion [M-76182] pertaining to Claim number 115950 is DENIED.

Claim number 115950 is hereby DISMISSED.


Motion by Claimant [M-76728]
Claimant’s motion[1] is treated as one for permission to serve and file a late claim. Court of Claims Act §10(6). There is no prohibition against making successive motions for late claim relief except for the constraint of time. A motion is “made, when a notice of motion . . . is served.” Civil Practice Law and Rules §2211; see also Jenkins v State of New York, 119 Misc 2d 144, 145 (Ct Cl 1983). A late claim motion must be timely brought in order to allow that a late claim be filed “ . . . at any time 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 . . .” Court of Claims Act §10(6). Premised on a date of accrual of August 6, 2007 (when Mr. Jenkins alleges he injured his hand while working in the dish room of the mess hall at Downstate Correctional Facility when he attempted to reposition an operating fan and his hand slipped through the cover of the fan and into the fan blades), and presuming a negligence cause of action where the statute of limitations for other civil actions is three (3) years [ Civil Practice Law and Rules §214], the motion for late claim relief is still timely. Cf. Roberts v State of New York, 11 AD3d 1000 (4th Dept 2004).

All the substantive aspects of the prayer for late claim relief have already been reviewed and approved by the Court, are incorporated herein, and need not be addressed again. [See Jenkins v State of New York, UID # 2008-030-551, Claim Number 115221, Motion Nos. M-75183, CM-75306 (Scuccimarra, J., August 19, 2008)].

Accordingly, Claimant’s motion [M-76728] for permission to serve and file a late claim is hereby GRANTED. Claimant is directed to serve his Claim upon the Attorney General, and to file it with the Chief Clerk of the Court of Claims within sixty (60) days from the date of filing of this decision and order in the Clerk’s Office, with such service and filing to be in accordance with the Court of Claims Act.[2] It is suggested that claimant proceed without delay.

July 28, 2009
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims




[1]. Although defendant submitted a cross-motion to dismiss claim number 115221 with a supporting affirmation, the papers were taken in opposition to claimant’s motion [M-76728] since claim number 115221 was dismissed a year ago, and from the context it can be seen that opposition is what was intended.
[2]. Although it should go without saying, there are no currently pending claims before the Court since Claim Number 115221 was dismissed on September 2, 2008, and Claim Number 115950 is dismissed herein.