New York State Court of Claims

New York State Court of Claims
HOLMES v. THE STATE OF NEW YORK, # 2018-041-038, Claim No. 130382, Motion No. M-92078

Synopsis

Claimant's motion to extend his time to file a notice of appeal is denied.

Case information

UID: 2018-041-038
Claimant(s): DAMON M. HOLMES
Claimant short name: HOLMES
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 130382
Motion number(s): M-92078
Cross-motion number(s):
Judge: FRANK P. MILANO
Claimant's attorney: DAMON M. HOLMES
Pro Se
Defendant's attorney: HON. BARBARA D. UNDERWOOD
NEW YORK STATE ATTORNEY GENERAL
By: Nicole M. Procida, Esq.
Assistant Attorney General
Third-party defendant's attorney:
Signature date: May 23, 2018
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

Claimant moves for an order granting him an extension of his time to file a notice of appeal from the Court's Decision and Order, filed March 12, 2018, dismissing the claim for lack of jurisdiction. Defendant "takes no position" with respect to claimant's requested relief.

Neither claimant's submission in support of his motion, nor defendant's opposing affirmation, provide any information as to when, or if, the Court's Decision and Order was served on claimant, with notice of entry. The date of such service triggers claimant's time to serve and file a notice of appeal (see Court of Claims Act 25; CPLR 5513).

The grounds upon which an extension of time within which to take an appeal may be granted are prescribed in CPLR 5514:

"(a) Alternate method of appeal. If an appeal is taken or a motion for permission to appeal is made and such appeal is dismissed or motion is denied and, except for time limitations in section 5513, some other method of taking an appeal or of seeking permission to appeal is available, the time limited for such other method shall be computed from the dismissal or denial unless the court to which the appeal is sought to be taken orders otherwise.

(b) Disability of attorney. If the attorney for an aggrieved party dies, is removed or suspended, or becomes physically or mentally incapacitated or otherwise disabled before the expiration of the time limited for taking an appeal or moving for permission to appeal without having done so, such appeal may be taken or such motion for permission to appeal may be served within sixty days from the date of death, removal or suspension, or commencement of such incapacity or disability.

(c) Other extensions of time; substitutions or omissions. No extension of time shall be granted for taking an appeal or for moving for permission to appeal except as provided in this section, section 1022, or section 5520."

Claimant has not provided any basis set forth in CPLR 5514 to warrant an extension of his time to file and serve a notice of appeal.

The claimant's motion is denied.

May 23, 2018

Albany, New York

FRANK P. MILANO

Judge of the Court of Claims

Papers Considered:

1. Claimant's Motion For Extension Of Time To File A Proper Notice Of Appeal, filed March 29, 2018;

2. Affirmation of Nicole M. Procida, dated April 13, 2018.