New York State Court of Claims

New York State Court of Claims

BURNS v. THE STATE OF NEW YORK, #2009-042-500, Claim No. NONE, Motion No. M-74916


Synopsis


This motion is brought by the claimant seeking permission to late file a claim under Court of Claims Act Section 8-b. Defendant opposes the motion arguing that the claimant has already made a claim arising out of the same incident and that claim was previously dismissed by this court. Claimant’s motion is denied.

Case Information

UID:
2009-042-500
Claimant(s):
JOHN J. BURNS, #07-B-2067
Claimant short name:
BURNS
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-74916
Cross-motion number(s):

Judge:
NORMAN I. SIEGEL
Claimant’s attorney:
JOHN J. BURNS, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQ. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 5, 2009
City:
Utica
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This motion is brought by claimant seeking permission to late file a claim under Court of Claims Act Section 8-b. The court has considered the following papers:
  1. Notice of Motion, filed April 30, 2008
  2. Claim, verified April 12, 2008
  3. Handwritten "Description of Events", notarized April 26, 2008
  4. Appellate Division decision, entered April 7, 2005
  5. Opposition affirmation of Joel L. Marmelstein, Esq., dated June 13, 2008
  6. Exhibits A - B, annexed to the opposition affirmation

On April 30, 2008 the claimant, John J. Burns, acting pro se, filed a Notice of Motion seeking an order “granting claimants [sic] motion”. Unfortunately, no affidavit is submitted in support of the motion nor is there any other explanation as to the precise nature of the relief sought. However, there is a “claim” attached to the notice of motion, together with a lengthy handwritten “description of events”. Taken in total, these documents suggest that the claimant is seeking permission to late file a claim, under Court of Claims Act Section 8-b, arising out of his criminal arrest in 2002 and subsequent conviction, which conviction was later reversed and the indictment dismissed by the Appellate Division, Third Department, in a decision issued on April 7, 2005.

The Attorney General opposes the motion. As the defendant notes, claimant already made a claim arising out of the same incident and that claim was previously dismissed by this court (Burns v State of New York, UID No. 2006-028-545, Claim No. 111231, Motion Nos. M-70805, CM-70919, Sise, P.J.) in a decision dated April 12, 2006. Defendant also correctly notes that while the Clerk of the Court of Claims did not assign a claim number to the current motion, claimant himself lists the prior Claim No. 111231 as the claim number assigned to the motion in issue, suggesting that claimant acknowledges that this motion is an attempt to relitigate the prior unfavorable decision.

This court is in accord with the position of the Attorney General that Judge Sise has already dismissed the claim and claimant cannot now, in the guise of this motion which fails to articulate the nature of the motion, relitigate that dismissal. Parenthetically, the court would also note that, inasmuch as the underlying criminal conviction was reversed and indictment dismissed by the Appellate Division on April 7, 2005, a claim at this time is time-barred by the provisions of Court of Claims Act Section 8-b (7).

Accordingly, claimant’s motion is denied.



February 5, 2009
Utica, New York

HON. NORMAN I. SIEGEL
Judge of the Court of Claims