New York State Court of Claims

New York State Court of Claims
JOHNSON v. STATE OF NEW YORK, # 2021-058-006, Claim No. NONE, Motion No. M-96333

Synopsis

Motion for permission to serve and file a late claim denied as unnecessary as the Claim was timely filed and served; Notice of Intention was timely and properly served and time to serve and file Claim was tolled pursuant to Executive Order 202.8 et seq.

Case information

UID: 2021-058-006
Claimant(s): LASHAWN JOHNSON
Claimant short name: JOHNSON
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-96333
Cross-motion number(s):
Judge: CATHERINE E. LEAHY-SCOTT
Claimant's attorney: Lashawn Johnson, Pro Se
Defendant's attorney: Hon. Letitia James, New York State Attorney General
By: Albert D. DiGiacomo, Esq., Assistant Attorney General
Third-party defendant's attorney:
Signature date: March 4, 2021
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Pro se Movant Lashawn Johnson seeks permission to serve and file a late claim pursuant to Court of Claims Act 10 (6). The proposed claim alleges that on or about November 27, 2018, Movant was injured after he slipped and fell on "slush, snow, and ice on the ground (walkway)" while walking between buildings at Mid-State Correctional Facility (see Claim 2 [attached to Motion for Permission to File a Late Claim]). Defendant opposes the motion arguing, among other things, that it is unnecessary in light of Movant's timely and proper service and filing of the claim attached to the motion.

Court of Claims Act 11 (a) (i) provides that a "claim shall be filed with the clerk of the court; and . . . a copy shall be served personally or by certified mail, return receipt requested, upon the attorney general within the times hereinbefore provided for filing with the clerk of the court." "A claimant seeking to recover damages for personal injuries caused by the negligence, intentional tort or unintentional tort of an officer or employee of the State must file and serve a claim or, alternatively, a notice of intention to file such a claim, upon the Attorney General within 90 days after the accrual thereof" (Maude V. v New York State Off. of Children & Family Servs., 82 AD3d 1468, 1469 [3d Dept 2011]; see Court of Claims Act 10 [3], [3-b]). When a notice of intention is timely served, the time to file and serve a claim alleging an unintentional tort is extended two years from the date of accrual (see Court of Claims Act 10 [3], [3-b]).

It is appears beyond dispute that this Claim accrued on November 27, 2018 (see Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General 18; see also id. Ex A [Notice of Intention] unnumb 4; Claim 2). Consequently, Movant had until February 28, 2019 to serve and file the Claim or, alternatively, serve a Notice of Intention to file such a Claim (see Court of Claims Act 10 [3]; 11 [a] [i]).

Movant contends he served a Notice of Intention to File a Claim upon the Office of the New York State Attorney General on February 23, 2019 (see Claim 6; Movant's Letter , dated January 17, 2021).(1) Defendant concedes "Movant timely and properly served a Notice of Intention via certified mail, return receipt requested upon the [Office of the New York State Attorney General] within ninety (90) days of accrual" (Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General 18). Movant's proper and timely service of the Notice of Intention extended his time to serve and file a claim to November 27, 2020, two years from the date of accrual (see Court of Claims Act 10 [3]).

By Executive Order 202.8 dated March 20, 2020, Governor Andrew M. Cuomo tolled "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state" until April 19, 2020 (Executive Order [Cuomo] No. 202 [9 NYCRR 8.202.8]; see also Administrative Order of Acting Presiding Judge Richard E. Sise, dated March 16, 2020). This toll was modified and extended by subsequent executive orders until November 3, 2020 (see Executive Order [Cuomo] No. 202 [9 NYCRR 8.202.67]).

Movant's time to serve and file his Claim was extended 228 days by reason of the toll (see Patrick M. Connors, The COVID-19 Toll: Time Periods and the Courts During Pandemic, NYLJ, July 17, 2020). Accordingly, Movant has until July 13, 2021 to serve and file his Claim (see id.).

The motion and attached proposed claim were filed on January 4, 2021. Additionally, Defendant concedes the motion and attached proposed claim were served upon the Office of the New York State Attorney General by certified mail, return receipt requested on January 7, 2021 (see Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General 20-21 & Exs B, C). Because the Claim was timely served and filed, the motion is denied as unnecessary (see Ambrose v State of New York, UID No. 2015-045-025 [Ct Cl, Lopez-Summa, J., July 29, 2015]).

Accordingly, the Clerk of the Court is directed to deem the Claim attached to Movant's motion papers as the Claim on the date the motion papers were filed. Although deemed timely filed, the Claim remains subject to any jurisdictional objections Defendant may have (see Cangiolosi v State of New York, UID No. 2014-045-023 [Ct Cl, Lopez-Summa, J., July 25, 2014]). The Clerk is also directed to process the poor person application which accompanied Movant's motion. Defendant is directed to serve and file its Verified Answer within forty (40) days of the date of filing of this Decision and Order.

Accordingly, it is hereby

ORDERED that Motion No. M-96333 is denied in its entirety; and it is further

ORDERED that the Clerk of the Court is directed to deem the proposed claim attached to Movant's motion papers as a Claim on the date the motion papers were filed. The Claim shall be subject to any jurisdictional objections Defendant may have; and it is further

ORDERED that the Clerk of the Court is directed to process the poor person application which accompanied Movant's motion; and it is further

ORDERED that Defendant is directed to serve and file its Verified Answer within forty (40) days of the date of filing of this Decision and Order.

March 4, 2021

Albany, New York

CATHERINE E. LEAHY-SCOTT

Judge of the Court of Claims

The Court has considered the following in deciding this motion:

(1) Motion for Permission to File a Late Claim, dated December 14, 2020, with attachments.

(2) Movant's Letter dated January 17, 2021.

(3) Affirmation of Albert D. DiGiacomo, Esq., Assistant Attorney General, in Opposition, dated February 26, 2021, with attachments.

(4) Movant's Letter, dated March 1, 2021.


1. On March 4, 2021, after the return date of this motion, the Court received a second letter from Claimant, dated March 1, 2021. As it does not appear this letter was served upon the Attorney General, the letter was not considered in deciding this motion.