Motion to file a late notice of intention. No proposed claim.
|Claimant short name:||SYKES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||GINA M. LOPEZ-SUMMA|
|Claimant's attorney:||Lorenzo Sykes, Pro Se|
|Defendant's attorney:||Hon. Barbara D. Underwood, Attorney General
By: Christina Calabrese, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 26, 2018|
|See also (multicaptioned case)|
The following papers were read and considered by the Court on this motion: Claimant's Notice of Motion to File a Late Notice of Intent; Claimant's Affidavit in Support with annexed Notice of Intention; and Defendant's Affirmation in Opposition.
Claimant, Lorenzo Sykes, a pro se inmate, has brought this motion seeking an order granting permission to file a late notice of intention to file a claim. However, the Court of Claims Act does not provide for the late filing of a notice of intention to file a claim. Pursuant to Chapter 466, Laws of 1995, effective August 2, 1995, a notice of intention is no longer filed with the Clerk of the Court of Claims. Court of Claims Act (CCA) § 10 (6) does allow a claimant to seek permission from the Court to file a late claim.
It is well settled that "[t]he Court of Claims is vested with broad discretion to grant or deny an application for permission to file a late claim" (Matter of Brown v State of New York, 6 AD3d 756, 757 ). In determining whether relief to file a late claim should be granted the Court must take into consideration the factors set forth in Court of Claims Act § 10 (6) (Bay Terrace Coop. Section IV, Inc. v New York State Employees' Retirement Sys. Policemen's & Firemen's Retirement Sys., 55 NY2d 979 ). The factors are not necessarily exhaustive, nor is the presence or absence of any particular one controlling (id.). Those factors are whether the delay in filing the claim was excusable; whether the defendant had notice of the essential facts constituting the claim; whether the defendant had an opportunity to investigate; whether the defendant was substantially prejudiced; whether the claim appears to be meritorious and whether the claimant has any other available remedy. A proposed claim to be filed, containing all of the information set forth in CCA § 11, shall accompany any late claim application.
Defendant, the State of New York, argues that even if the Court views the motion as one seeking late claim relief it must be denied because claimant has failed to provide a date of accrual as required by CCA § 11 (b) in either his affirmation or the proposed claim.
Court of Claims Act § 11 (b) requires in pertinent part that "[t]he claim shall state the time when and place where such claim arose, the nature of same, [and] the items of damage or injuries claimed to have been sustained." These requirements are jurisdictional in nature and must be strictly complied with in order to properly initiate an action against defendant (Kolnacki v State of New York, 8 NY3d 277 ).
The Court cannot permit the filing of a claim which does not meet the jurisdictional requirements of Court of Claims Act § 11 (b). Claimant's failure to include a date of accrual in his proposed claim runs afoul of this jurisdictional requirement (Lepkowski v State of New York, 1 NY3d 201 ; Prisco v State of New York, 62 AD3d 978 [2d Dept 2009]; Czynski v State of New York, 53 AD3d 881 [3d Dept 2008]).
Therefore, for the foregoing reasons, claimant's motion is denied.
July 26, 2018
Hauppauge, New York
GINA M. LOPEZ-SUMMA
Judge of the Court of Claims