Opinion
# 2012-040-090 Claim No. 120355 Motion No. M-82094
10-31-2012
NIGEL JOSEPH v. THE STATE OF NEW YORK
Synopsis
Claimant's motion to amend claim denied as it appears claim was not served on defendant. Case information
UID: 2012-040-090 Claimant(s): NIGEL JOSEPH Claimant short name: JOSEPH Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 120355 Motion number(s): M-82094 Cross-motion number(s): Judge: CHRISTOPHER J. McCARTHY Claimant's attorney: Nigel Joseph, Pro Se ERIC T. SCHNEIDERMAN Defendant's attorney: Attorney General of the State of New York By: Paul F. Cagino, Esq., AAG Third-party defendant's attorney: Signature date: October 31, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
For the reasons set forth below, pro se Claimant's motion to amend his Claim to include a second cause of action regarding a separate and distinct wrongful confinement is denied.
The Claim, which was filed with the Clerk of the Court on September 14, 2011, alleges that, while incarcerated at Franklin Correctional Facility located in Malone, New York (Franklin), Claimant was wrongfully confined to his cell following a disciplinary hearing on March 10, 2010, which was reversed and expunged by the Superintendent of Franklin by letter dated May 24, 2011. Claimant seeks to amend his Claim by adding another wrongful confinement cause of action for a second incident which allegedly occurred on July 16, 2011, for which Claimant was allegedly wrongfully confined for 43 days and which was expunged on May 14, 2012 (Claimant's Affidavit in Support, ¶ 4).
In opposition to the motion, the State has submitted the Affirmation of Assistant Attorney General Paul F. Cagino. Mr. Cagino avers that Claimant served two Notices of Intention to File a Claim upon the Attorney General, one on July 28, 2011 and the other on July 30, 2012 (see Exs. A and B attached to Cagino Affirmation) but has not served a Claim upon the State (Cagino Affirmation, ¶ 3). The State asserts that, since the Claim has not been served, it cannot be amended (id.).
In response, Claimant asserts that he served the motion papers upon the State. However, he does not state that he served the Claim upon the Attorney General.
As there is no evidence that Claimant ever served the Claim upon the Defendant, it does not appear that the Court ever obtained jurisdiction over the State for purposes of this Claim. Therefore, the Court lacks the power to grant Claimant's motion to amend the Claim (Vandermallie v Liebeck, 225 AD2d 1069 [4th Dept 1996], rearg denied 647 NYS2d 653 [4th Dept 1996], lv dismissed 89 NY2d 916 [1996]; see Smith v Garo Enterprises, Inc., 60 AD3d 751 [2d Dept 2009], lv dismissed 13 NY3d 756 [2009]). Claimant's motion to amend is denied.
October 31, 2012
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 to amend his Claim:
Papers Numbered
Notice of Motion, Affidavit in Support
& Exhibits attached 1
Affirmation in Opposition & Exhibits attached 2
Claimant's Reply 3
Filed Papers: Claim