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