New York State Court of Claims

New York State Court of Claims

HART v. STATE OF NEW YORK, #2009-036-529, , Motion No. M-76342


Synopsis



Case Information

UID:
2009-036-529
Claimant(s):
LEROY HART
Claimant short name:
HART
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
M-76342
Cross-motion number(s):

Judge:
MELVIN L. SCHWEITZER
Claimant’s attorney:
NEWMAN, O’MALLEY & EPSTEIN, LLCBy: Lisa J. Ruiz, Esq.
Defendant’s attorney:
ANDREW M. CUOMO, ATTORNEY GENERAL
By: John M. Hunter, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 20, 2009
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant moves for the second time with respect to his second failure to properly file and serve a timely claim.[1] The claim essentially alleges that on April 7, 2007 claimant was assaulted by four New York State parole officers causing him personal injury. On February 14, 2008, the court granted defendant’s motion to dismiss the claim because it was not properly served on the Attorney General, but granted claimant leave to file a modified version of the original claim as a late claim within 40 days of the filing date of the court’s decision and order (by March 25, 2008). See Hart v State of New York, Claim No. 113734, Motion Nos. M-73771 and CM-73980 (February 14, 2008). Claimant never filed and served the late claim as ordered by the court. Both sides proceeded with pre-trial discovery, and in September 2008, a trial date for early February 2009 was scheduled. In November 2008, however, defendant discovered it had no record of the late claim ever having been filed and served. Upon further investigation by the Clerk of the Court, it was confirmed that the claim had not been filed. The one-year statute of limitations for the claim (CPLR 215 [3]) which alleges intentional torts expired on April 8, 2008.

Claimant’s motion here is for permission to “re-serve and re-file an amended claim,” or in the alternative, for an order amending the court’s February 14, 2008 Decision and Order to extend the time within which claimant may file and serve his late claim. Claimant’s motion must be denied because the court does not have discretion to grant leave to file a late claim once the statute of limitations has run (see Roberts v City University of New York, 41 AD3d 825 [2d Dept 2007]; Sands v State of New York, 49 AD3d 444 [1st Dept 2008]).

Claimant argues the relief he seeks should be granted because there is no prejudice to defendant as the case was ready for trial (but compare Kolnacki v State of New York, 8 NY3d 277 [2007], rearg denied 8 NY3d 994 [2007]), and suggests that the court issue a new order which somehow might be deemed to relate back to the date of claimant’s motion to file a late claim and the court’s original order made before the statute of limitations expired. The above-cited appellate court precedent clearly does not afford the court such latitude in the face of claimant’s failure to comply with the jurisdictional prerequisites of the Court of Claims Act, including CPLR Article 2 requirements (Court of Claims Act § 10 (6)). See CPLR 201 (“No court shall extend the time limited by law for the commencement of an action.”). See also Siegel, New York Practice, Fourth Edition, § 33 (“[T]he statute of limitations is not subject to a discretionary judicial extension of time no matter how good the reason for delay may be.”). Cf. Dreger v New York State Thruway Auth., 81 NY2d 721 (1992).

Accordingly, claimant’s motion is denied.



May 20, 2009
New York, New York

HON. MELVIN L. SCHWEITZER
Judge of the Court of Claims




[1].In connection with this motion, the court considered and read: Claimant’s Notice of Motion for Leave to Re-Serve and Re-File Amended Claim, dated March 2, 2009; Affirmation in Support of Motion, dated March 2, 2009, together with exhibits annexed thereto; and Defendant’s Affirmation in Opposition, dated March 17, 2009.