New York State Court of Claims

New York State Court of Claims

MILLER v. THE STATE OF NEW YORK, #2009-045-005, Claim No. None, Motion No. M-75698


motion to serve and amend a late notice of intention

Case Information

JOSEPH MILLER and MONICA MILLS, Individually and as Husband and Wife
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Cellino & Barnes, P.C.By: Christian R. Oliver, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 29, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read and considered by the Court on this motion: Claimants’ Notice of Motion, Claimants’ Affirmation with annexed Exhibits A-D and Defendant’s Affirmation in Opposition. Claimants, Joseph Miller and Monica Mills, individually and as husband and wife, have brought this motion pursuant to Court of Claims Act § 10(6) seeking an order granting permission to file and serve an amended “late notice of intention of claim.” However, in the body of claimants’ motion papers claimants seem to be requesting an order granting permission to merely serve a late notice of intention. Defendant, the State of New York, has opposed this application as if it was a motion requesting permission to file and serve a late claim under Court of Claims Act § 10(6).

Claimants allege that on May 18, 2008, claimant Joseph Miller sustained serious injuries when he was involved in an accident while operating his motorcycle westbound in the left lane of the Southern State Parkway near exit 24. On August 12, 2008, Mr. Miller served a notice of intention on defendant. Neither claimants nor defendant contend that the notice of intention was improperly served.

On October 10, 2008 claimants served an amended notice of intention on defendant which added the derivative claim of Monica Mills seeking damages due to loss of companionship, society and consortium to the claim of her husband, Joseph Miller.

Claimants explicitly state in paragraph 3 and at the close of their affirmation that they are seeking leave to serve a late notice of intention. They also state in paragraph 10 of their affirmation that the present motion is to amend the August 12, 2008 notice of intention to include the derivative claim of Ms. Mills. The Court also notes that claimants have not yet filed a claim for the primary claim of Joseph Miller in this matter.

Court of Claims Act § 10(6) provides the Court with authority to permit the filing of a late claim only. There is nothing within the Court of Claims Act which confers upon the Court the power to permit the service or amendment of a late notice of intention to file a claim (Holmes v State of N.Y., Roswell Park Cancer Inst. Corp., 5 Misc 3d 446 [Ct Cl 2004]; Harter v State of New York, UID # 2006-009-067, Motion No. M-71990, Midey, J. [Ct Cl 2006]).

Accordingly, given this court’s lack of authority to grant the requested relief, claimants’ motion to amend and serve a late notice of intention must be denied.

January 29, 2009
Hauppauge, New York

Judge of the Court of Claims