Claimant's motion denied as no notice of motion or cross-motion included with papers in contravention of CPLR 2214 and 2215 and Uniform Rules for the Court of Claims § 206.8(a). In any event, if motion was properly commenced, it would be denied. If it is a 10(6) motion, Claimant failed to address statutory factors and, if it is a motion to amend, it is denied as a jurisdictionally defective claim cannot be cured through amendment.
|Claimant(s):||LEON SMITH 15B1619|
|Claimant short name:||SMITH|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Leon Smith, 15-B-1619, Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Sean B. Virkler, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||September 11, 2017|
|See also (multicaptioned case)|
For the reasons set forth below, Claimant's Motion is denied.
This pro se Claim, which was filed with the office of the Clerk of the Court on April 4, 2017, asserts that, "on or about 2011," Claimant was seen by a dentist at Central New York Psychiatric Center (hereinafter, "CNYPC") because of a problem with a wisdom tooth (Claim, ¶ 4); that the dentist recommended that the tooth be extracted and Claimant agreed (id., ¶ 5); that the dentist was negligent in performing the extraction, as the tooth shattered, but the dentist advised Claimant that all the "splinters" had been removed (id., ¶ 6). Claimant asserts that, after the extraction, he had swelling in the area of the tooth and suffered much pain (id., ¶ 7). He further alleges that, on June 18, 2015, after another dentist took an x-ray of his jaw, he was advised that a piece of the broken tooth was still in his mouth and he needed surgery to have it removed (id., ¶ 8).
Defendant, by Motion returnable on June 28, 2017, moved to dismiss the Claim based upon lack of subject matter and personal jurisdiction pursuant to CPLR 3211(a)(2) and (8) for failure to comply with the service and timeliness requirements of Court of Claims Act §§ 10(3) and 11. This Court granted that Motion and dismissed the Claim (Smith v State of New York, UID No. 2017-040-107 [Ct Cl, McCarthy, J., Aug. 9, 2017]).
Mr. Smith filed a document with the office of the Clerk of the Court on June 15, 2017, labeled "Claim" and references Claim No. 129530. There is no Notice of Motion or affidavit in support of a Motion, however, there is an Affidavit of Service stating that Mr. Smith "on June 8, 2017, … served the Notice of Motion in the above captioned matter, upon … the Attorney General." It was served upon Defendant, as Defendant has submitted an Affirmation in Opposition.
CPLR 2214 regarding motions and CPLR 2215 relating to cross-motions, require, respectively, that a party making a Motion or Cross-Motion serve a Notice of Motion or Notice of Cross-Motion. In fact, Uniform Rules for the Court of Claims § 206.8(a) provides that, in addition to complying with the provisions of the CPLR for bringing a motion, "no motion shall be filed with the [C]ourt unless a [N]otice of [M]otion is served and filed, with proof of service, with the motion papers." As Claimant has failed to comply with the CPLR requirements and Court rules for instituting a motion or cross-motion, by failing to serve and file a Notice of Motion or Cross-Motion demanding relief, the Court lacks jurisdiction to grant relief (Vanek v Mercy Hosp., 135 AD2d 707[2d Dept 1987]; J.A. Valenti Elec. Co. v Power Line Constructors, 123 AD2d 604 [2d Dept 1986]).
Assuming, arguendo, the Motion had been properly commenced, it would still be denied. If the Court considers the Motion to be one for permission to serve and file a Claim late pursuant to Court of Claims Act § 10(6), the application is denied as Claimant failed to address any of the factors listed in the statute. If the Court considers the Motion to be one to Amend the Claim, the application is denied because, as noted by the Appellate Division, Third Department, in Hogan v State of New York (59 AD3d 754, 755 [3d Dept 2009]), a "jurisdictionally defective claim cannot be cured through an amendment" (see also Dinerman v NYS Lottery, 69 AD3d 1145, 1146 [3d Dept 2010]; Manshul Constr. Co. v State Ins. Fund, 118 AD2d 983, 985 [3d Dept 1986]).
Based upon the foregoing, Claimant's Motion is denied.
September 11, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Claimant's Motion:
Affirmation in Opposition & Exhibits Attached 2
Papers filed: Claim