New York State Court of Claims

New York State Court of Claims

RIVERA v. STATE OF NEW YORK, #2009-032-107, Claim No. N/A, Motion No. M-75609


Synopsis



Case Information

UID:
2009-032-107
Claimant(s):
VICTOR RIVERA
Claimant short name:
RIVERA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
N/A
Motion number(s):
M-75609
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Victor Rivera, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Paul F. Cagino, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
April 13, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

By this motion, claimant seeks permission to file and serve a late claim on defendant State of New York (Court of Claims Act §10[6]). The proposed claim alleges that on May 1, 2008, at Coxsackie Correctional Facility, claimant was directed to place a mattress on his shoulders and then step out of his cell with both hands in his pockets. When he protested that this was not physically possible, he was told to put everything on the floor and turn to the wall, placing both hands on the wall. Claimant alleges that the Correction Officer who had been giving him these directions then began to beat him, while another officer held both of his legs. Claimant’s injuries are said to include a cut on his left eyebrow which had to be stitched, bruises on both sides of his body, and pain between his neck and upper arm.


Counsel for defendant State of New York has submitted an affirmation in opposition to the motion which states, among other things, that the State has not received from claimant either a copy of the application to late file or a claim relating to the May 1, 2008 incident. Although claimant’s Notice of Motion has an attached Affidavit of Service that is signed and notarized, the substantive statements regarding the date on which motion papers were served and how service was accomplished were left blank. Moreover, claimant has not responded to or refuted defendant’s claim that it was never served.

Section 10(6) of the Court of Claims Act expressly requires that applications for permission to late file be made “upon motion.” A motion is an application for an order (CPLR 2211) and, in New York, motions are to be made on notice (i.e., with copies of the motion papers served on all other parties) except in the few instances where ex parte motions are expressly permitted (see, e.g., CPLR 6211 [order of attachment]; CPLR 6313 [temporary restraining order]) or, arguably, where no other part would be prejudiced or affected in the least (Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, C2211:6).

Accordingly, claimant’s motion is denied.



April 13, 2009
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Motion and Supporting Affidavit of Victor Rivera, pro se, with annexed Exhibits;

2. Affirmation of Paul F. Cagino, AAG, with annexed Affidavit of Janet A. Barringer.

Filed papers: None