Bailment claim was dismissed as untimely. Notice of intention did not extend time to file and serve claim.
|Claimant short name:||FOMINAS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|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|
|See also (multicaptioned case)|
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 ).
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] ). 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] ), 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 ); (Bush v State of New York, 60 AD3d 1244 .
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: