New York State Court of Claims

New York State Court of Claims

BEHNKE v. THE STATE OF NEW YORK, #2009-045-026, Claim No. 115686, Motion No. M-76937


Synopsis


claimant’s motion to convert originally served claim to a notice of intention.

Case Information

UID:
2009-045-026
Claimant(s):
BERNHARD J. BEHNKE
Claimant short name:
BEHNKE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115686
Motion number(s):
M-76937
Cross-motion number(s):

Judge:
GINA M. LOPEZ-SUMMA
Claimant’s attorney:
Arthur V. Graseck, Jr., Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo, Attorney GeneralBy: Todd A. Schall, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 26, 2009
City:
Hauppauge
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered by the Court on this motion: Claimant’s Notice of Motion, Claimant’s Affirmation and Defendant’s Affirmation in Opposition, the filed Claim and the filed Answer.

Claimant, Bernhard J. Behnke, has brought this motion “for an order providing the claimant’s previously served document denominated a claim be treated as a notice of intent to sue and permitting claimant to serve a claim to obviate the problem arising from claimant’s failure to file his claim within ninety (90) days of the incident in issue.”

In a sparsely written affirmation, claimant states that he served and filed a claim in this matter within ninety days of the date of accrual. Claimant continues that the claim was rejected by the Clerk of the Court since the filing fee did not accompany the claim. Thereafter, claimant filed his claim with the fee after the ninety day period had elapsed. Without any details of the underlying claim, claimant merely states that the “complained of incident occurred on May 4, 2008.”

An independent review of the filed claim reveals that claimant alleges that he was falsely arrested due to the negligence of a Nassau County District Court Clerk.

Claimant is requesting that the Court treat his originally served claim as a notice of intention to file a claim and that he now be permitted to file and serve a new claim in this matter.

Defendant basically opposes this motion on the grounds that claimant has failed to satisfy the requirements set out in Court of Claims Act § 10(6). However, claimant has not made such an application as part of this motion. A portion of defendant’s motion mentions claimant’s failure to timely file the claim in this matter and the jurisdictional problems which may result from such a failure. However, those points were not raised in a cross-motion and seem to be merely made in support of defendant’s position that claimant’s motion should be denied.

In any event, claimant is essentially seeking preemptive action from the Court to enjoin defendant from raising certain affirmative defenses if and when claimant serves his claim in this matter. Such relief is beyond the power of this Court.

Therefore, for the foregoing reasons, claimant’s motion is denied.

October 26, 2009
Hauppauge, New York

HON. GINA M. LOPEZ-SUMMA
Judge of the Court of Claims