|Claimant short name:||CARTER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||James J. Lack|
|Claimant's attorney:||Law Offices of Wayne J. Schaefer, LLC
By: Wayne J. Schaefer, Esq.
|Defendant's attorney:||Andrew M. Cuomo, New York State Attorney General
By: Kimberly M. Kinirons, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 24, 2010|
|See also (multicaptioned case)|
This is a claim brought by Tracy Carter (hereinafter "claimant") for injuries and punitive damages due to the alleged action of an employee of defendant, the State of New York (hereinafter "State"). The alleged incident occurred on March 23, 2009, in West Brentwood, New York.
Claimant seeks permission to deem her notice of intention timely served, permission to file a late claim against the State of New York pursuant to Court of Claims Act §10(6), or to deem the notice of intention a claim pursuant to Court of Claims Act §10(8)(1) .
As noted, the incident occurred on March 23, 2009. Claimant served a notice of intention upon defendant by personal service upon an assistant attorney general on June 18, 2009. Claimant served the claim upon defendant by personal service upon an assistant attorney general on March 18, 2010 and served an amended verified claim upon defendant by personal service upon an assistant attorney general on March 22, 2010. Claimant filed the claim in the clerk's office on March 19, 2010 and filed the amended claim in the clerk's office on March 23, 2010.
Defendant readily admits the notice of intention, claim and amended claim were properly and timely served and filed. To defendant's credit, it did not assert any affirmative defense as to timeliness of the claim or notice of intention.
Claimant argues she seeks to add Dr. Mone as a defendant by way of late claim.(2)
The establishment of the court system is found in Article VI of the New York State Constitution. Article VI, §7 states that the Supreme Court shall "have general original jurisdiction in law and equity and the appellate jurisdiction herein provided."
The Supreme Court in this State is a court of general original jurisdiction in law and equity (see N. Y. Const., art. VI, § 7, subd. a.) and, in conformity with its all inclusive powers, the court is authorized in any action to render such judgment as is appropriate to the proofs received in conformity with the allegations of the pleadings, irrespective of the nature of the relief demanded, subject, of course, in a proper case, to the imposition of such terms as may be necessary to protect the rights of any party.
(Kaminsky v Kahn, 23 AD2d 231, 236).
Separately, the Court of Claims is established by NY Const Art. VI, §9, which states, in relevant part that "[t]he court shall have jurisdiction to hear and determine claims against the state or by the state against the claimant or between conflicting claimants as the legislature may provide." The Court of Claims is limited to awarding money damages against the State of New York (Matter of Silverman v Comptroller of State of New York, 40 AD2d 225).
The Court denies claimant permission in toto as unnecessary. The notice of intention, claim and amended claim were timely and properly served. This Court does not have jurisdiction over an individual suit against Dr. Mone.
Based upon the foregoing, claimant's motion is denied.
September 24, 2010
Hauppauge, New York
James J. Lack
Judge of the Court of Claims
1. The following papers have been read and considered on claimant's motion: Notice of Motion dated March 22, 2010 and filed March 23, 2010; Affirmation in Support of Motion of Wayne J. Schaefer, Esq. with annexed Exhibits A-C dated March 22, 2010 and filed March 23, 2010; Affirmation in Opposition to Motion to File Late Claim of Kimberly A. Kinirons, Esq. dated May 5, 2010 and filed May 6, 2010; Reply Affirmation of Wayne J. Schaefer, Esq. with annexed Exhibit A dated May 25, 2010 and filed May 25, 2010.
2. The Court notes Dr. Mone was included on the original claim and the amended claim. At a preliminary conference of the claim, the Court sua sponte amended the caption to reflect the State of New York as the only appropriate defendant. It was explained to counsel the Court did not have jurisdiction over individuals.