Pro se Movant's Court o Claims Act § 10(6) Motion for permission to serve and file a late Claim denied without prejudice.
|Claimant(s):||RICHARD GREENE #14-A-4796|
|Claimant short name:||GREENE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||Caption amended to reflect the State of New York as the proper defendant.|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Richard Greene, #14-A-4796, Pro Se|
|Defendant's attorney:||ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
By: Belinda A. Wagner, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||July 7, 2017|
|See also (multicaptioned case)|
For the reasons set forth below, the application of pro se Movant, Richard Greene, to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is denied without prejudice.
Court of Claims Act § 10(6) contains two preliminary requirements that must be satisfied in order for the Court to review the six enumerated factors set forth in the statute. The first is that the underlying Civil Practice Law and Rules (CPLR) statute of limitations for asserting a like claim against a citizen of New York State has not yet expired. Here, the Movant, in his affidavit in support of his Motion, is asserting two causes of action, one for medical issues that accrued on July 12, 2016 and the other for discrimination/retaliation, which he is basing on a violation of the New York State Constitution, that accrued on May 23, 2016 (Affidavit in Support, ¶¶ 4, 7, 8, 9). The statute of limitations for medical malpractice is two and a half years (CPLR § 214-a) and for constitutional torts is three years (CPLR § 214). Thus, the Motion appears to be timely, based upon the accrual dates Movant asserts.
The second requirement is 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). The failure to satisfy this prerequisite is a basis, in and of itself, for denial of the Motion (Davis v State of New York, 28 AD2d 609 [3d Dept 1967]; Bennett v State of New York, UID No. 2013-040-068 [Ct Cl, McCarthy, J., Oct. 3, 2013]; Nestel v State of New York, Claim No. None, Motion No. M-71607 [Ct Cl, Mignano, J., May 31, 2006]; Harrell v State of New York, UID No. 2003-005-511 [Ct Cl, Corbett, J., April 3, 2003]). Here, in support of his Motion, Movant has submitted an affidavit, however, he has not submitted a proposed Claim. On this basis, the Motion for Permission to File a Late Claim is denied without prejudice.
July 7, 2017
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Movant's Motion to file a late Claim pursuant to Court of Claims Act § 10(6):
Notice of Motion & Affidavit in Support 1
Affirmation in Opposition 2
Movant's Affirmation in Response to Opposition 3
Movant's Letter to Court dated June 20, 2017 4