New York State Court of Claims

New York State Court of Claims
FOMINAS v. THE STATE OF NEW YORK, # 2010-015-194, Claim No. 116975, Motion No. M-78705

Synopsis

Bailment claim was dismissed as untimely. Notice of intention did not extend time to file and serve claim.

Case information

UID: 2010-015-194
Claimant(s): ANATOLIS FOMINAS
Claimant short name: FOMINAS
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 116975
Motion number(s): M-78705
Cross-motion number(s):
Judge: FRANCIS T. COLLINS
Claimant's attorney: Anatolis Fominas, Pro Se
Defendant's attorney: Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, Esquire
Assistant Attorney General
Third-party defendant's attorney:
Signature date: November 23, 2010
City: Saratoga Springs
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant, a pro se inmate, moves pursuant to CPLR 2221 for leave to reargue this Court's prior Decision and Order dismissing the instant bailment claim as untimely filed and served.

Claimant seeks damages for the loss of personal property which allegedly occurred during the course of a transfer between prison facilities on February 25, 2008. Claimant filed an administrative claim and exhausted his administrative remedies on May 9, 2008 when his appeal from the administrative decision denying his claim was affirmed. The instant claim was served June 5, 2009 and filed with the Clerk on June 8, 2009. By Decision and Order of this Court filed October 9, 2009, the claim was dismissed on the ground it was filed and served more than 120 days after the claimant exhausted his administrative remedies (Court of Claims Act 10 [9]).

In support of the instant motion, claimant contends that defense counsel failed to apprise the Court of the fact that claimant served a notice of intention to file claim by certified mail, return receipt requested, on July 10, 2008. He argues, therefore, that the claim served on June 5, 2009 and filed June 8, 2009 is timely.

As defendant points out, CPLR 2221 (d) (3) requires that a motion for leave to reargue be made within 30 days after service of a copy of the Order with notice of entry (CPLR 2221 [d] [3]). Defense counsel avers that the Decision and Order dismissing the claim was served with notice of entry on October 23, 2009. Claimant's motion to reargue made almost one year after the Decision and Order was served with notice of entry is clearly untimely. However, even if the Court were to consider the merits of the motion under the standards applicable to a motion to renew (CPLR 2221 [e] [2]), it would be denied as "there is no provision in Court of Claims Act 10 (9) which allows for service of a notice of intention to file a claim as a means of extending the time that a claim may be served or filed" (Pristell v State of New York, 40 AD3d 1198 [2007]); (Bush v State of New York, 60 AD3d 1244 [2009].

Accordingly, the claimant's motion for leave to reargue is denied.

November 23, 2010

Saratoga Springs, New York

FRANCIS T. COLLINS

Judge of the Court of Claims

The Court considered the following papers:

  1. Notice of motion filed August 23, 2010;
  2. Affidavit of Anatolis Fominas sworn to August 4, 2010 with exhibits;
  3. Affirmation of Paul F. Cagino dated September 3, 2010.