Opinion
# 2015-038-528 Claim No. None Motion No. M-86148
05-27-2015
JOHN H. WHITE v. THE STATE OF NEW YORK
JOHN H. WHITE, Pro se ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Michael T. Krenrich, Assistant Attorney General
Synopsis
Motion for late claim relief pursuant to Court of Claims Act § 10 (6) denied where information required to be set forth in a proposed claim was set forth in an affidavit, not a proposed claim.
Case information
| UID: | 2015-038-528 |
| Claimant(s): | JOHN H. WHITE |
| Claimant short name: | WHITE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | None |
| Motion number(s): | M-86148 |
| Cross-motion number(s): | |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | JOHN H. WHITE, Pro se |
| Defendant's attorney: | ERIC T. SCHNEIDERMAN, Attorney General of the State of New York By: Michael T. Krenrich, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | May 27, 2015 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, moves pursuant to Court of Claims Act § 10 (6) for permission to file and serve a late claim. Defendant opposes the motion on the grounds that it is unaccompanied by a proposed claim, and that it is untimely, arguments to which claimant has replied.
A motion pursuant to Court of Claims Act § 10 (6) requires the Court to consider, among other factors, "whether the delay in filing the claim was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve upon the attorney general a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy." The statute requires, however, that "[t]he claim proposed to be filed, containing all of the information set forth in section eleven of this act, shall accompany such application" Court of Claims Act § 10 [6] [emphasis added]), and the lack of a proposed claim is a jurisdictional defect that requires denial of the motion (see Davis v State of New York, 28 AD2d 609, 610 [3d Dept 1967]; Di Bacco v State of New York, 57 Misc 2d 832, 834 [Ct Cl 1968]; Thompson v State of New York, UID No. 2008-044-577 [Ct Cl, Schaewe, J., Sept. 9, 2008]).
Claimant has filed two documents on this motion - a "Motion to File Late Claim" in which he addresses the substantive considerations required pursuant to Court of Claims Act § 10 (6), and an "Affidavit in Support for Notice of Motion to File Late Claim" which, in three sections denominated as "Parts," contains factual allegations of the malfeasance of defendant's agents on four dates, and includes two separate requests for awards of damages in the amount of $100,000.00. This document is not in the form of a claim, and is not described by claimant as a proposed claim, although in reply to defendant's opposition to his motion, he asserts that his motion contains "all of the information of a proposed claim" (Claimant's Reply, ¶ 4). Be that as it may, Court of Claims Act § 10 (6) requires that all of that information be contained in the proposed claim, and the document submitted by claimant in support of his motion is not a proposed claim. As stated above, the absence of a proposed claim is a jurisdictional defect that precludes the granting of claimant's motion (see Davis v State of New York, at 610 ["granting of the [late claim] application where the motion papers did not comply with the statute was error"]).
In light of this jurisdictional defect, whether the motion was made within the limitation period set forth in article two of the CPLR need not be addressed.
Accordingly, it is
ORDERED, that motion number M-86148 is DENIED.
May 27, 2015
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Motion to File Late Claim, sworn to December 17, 2014, filed December 24, 2014; (2) Affidavit in Support for Notice of Motion to File Late Claim, sworn to December 22, 2014; (3) Affirmation in Opposition of Michael T. Krenrich, AAG, dated January 7, 2015, with Exhibit A; (4) Claimant's Reply to Opposition Filed by State on or around 1-7-15, sworn to January 14, 2015, with Exhibit.