New York State Court of Claims

New York State Court of Claims

CAGLE v. THE STATE OF NEW YORK, #2009-040-067, Claim No. NONE, Motion No. M-76729


Synopsis


Court of Claims Act § 10(6) motion to file a claim late denied as underlying statute of limitations has expired.

Case Information

UID:
2009-040-067
Claimant(s):
MICHAEL CAGLE
Claimant short name:
CAGLE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-76729
Cross-motion number(s):

Judge:
CHRISTOPHER J. McCARTHY
Claimant’s attorney:
Michael Cagle, Pro Se
Defendant’s attorney:
ANDREW M. CUOMO
Attorney General of the State of New YorkBy: Glenn C. King, Esq., AAG
Third-party defendant’s attorney:

Signature date:
August 17, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, the application of Movant, Michael Cagle, to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is denied.

The proposed Claim, attached to the motion papers, alleges that on July 28, 2006 at Upstate Correctional Facility located in Malone, New York (Upstate) Claimant was assaulted by facility staff members.

Pursuant to Court of Claims Act § 10(6), it is within the Court’s discretion to allow the filing of a late claim if the applicable statute of limitations set forth in Article 2 of the CPLR has not expired. Thus, the first issue for determination upon any late claim motion is whether the application is timely. The proposed Claim asserts a cause of action for the intentional tort of assault (CPLR § 215[3], a one-year statute of limitations). That cause of action accrued on the date of the alleged assault, July 28, 2006. Thus, the statute of limitations has expired. As a movant is permitted to file a late Claim only if the underlying cause of action is not time barred (Arbor Hill Partners v New York State Commr. of Hous. & Community Renewal, 267 AD2d 675 [3d Dept 1999]; Marine Midland Bank v State of New York, 195 AD2d 871[3d Dept 1993], lv denied 82 NY2d 661 [1993]), Movant’s motion for permission to file a late claim regarding this assault is denied.


August 17, 2009
Albany, New York

HON. CHRISTOPHER J. MCCARTHY
Judge of the Court of Claims


The following papers were read and considered by the Court on Movant’s motion for permission to serve and file a claim late:

Papers Numbered

Notice of Motion and Claim 1

Affirmation in Opposition 2