New York State Court of Claims

New York State Court of Claims
DIAZ v. THE STATE OF NEW YORK, # 2019-040-061, Claim No. NONE, Motion No. M-93904

Synopsis

Motion for permission to serve and file a late Claim pursuant to CCA 10(6) denied without prejudice.

Case information

UID: 2019-040-061
Claimant(s): GUSTAVO DIAZ
Claimant short name: DIAZ
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.
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): NONE
Motion number(s): M-93904
Cross-motion number(s):
Judge: CHRISTOPHER J. McCARTHY
Claimant's attorney: GETZ & BRAVERMAN
By: Michael I. Braverman, Ewsq.
Defendant's attorney: LETITIA JAMES
Attorney General of the State of New York
By: Christopher J. Kalil, Esq., AAG
Third-party defendant's attorney:
Signature date: August 7, 2019
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

For the reasons set forth below, the application of Movant, Gustavo Diaz, 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) provides only for the late filing of a Claim, not a Notice of Intention to File a Claim (Holmes v State of N.Y., Rosewell Park Cancer Inst. Corp., 5 Misc 3d 446 [Ct Cl 2004]; DeHart v State of New York, 92 Misc 2d 631 [Ct Cl 1977]). While Movant's Notice of Motion seeks permission to file a late Claim, Movant has submitted a "Notice of Intention to File a Claim" (Ex. A attached to Affirmation of Michael I. Braverman, Esq. [hereinafter, "Braverman Affirmation"]. In order for a Notice of Intention to be considered a Claim, it must contain all the elements of a Claim as set forth in Court of Claims Act 11(b). The statute requires that the Claim "state the time when and place where the claim arose, the nature of the same, the items of damage or the injuries claimed to have been sustained" and, except in certain cases, the total sum claimed.

The Notice of Intention asserts that, on January 1, 2018, Movant was incarcerated at Mid-State Correctional Facility and housed in "21- 2- 11B,"(2) when he burned his left lower leg on a radiator. Movant asserts that the radiator was right next to his bed and that the radiator did not have a cover on it. Movant asserts that Defendant was negligent and failed to comply with Federal, State, and local building codes. The Notice of Intention is dated March 22, 2018.

Movant's counsel asserts that Movant "filed" the Notice of Intention upon the Attorney General's Office and that it was returned to Movant on or about April 1, 2018 as untimely (Braverman Affirmation, 5, 6).

A review of Exhibit A, the Notice of Intention, establishes that the document was "Received April 5, 2018, State Court of Claims, Office of the Chief Clerk, Albany, N.Y." The document also contains a handwritten notation that it was received on "4/5/18" and was returned on "4/1/18." This last notation is obviously an error. The Court has checked the Court's Mail Log and established that the Notice of Intention was returned to Movant on June 1, 2018. The document was returned to Claimant as Notices of Intention are served upon the Defendant, not filed with the Court.

The Court finds and concludes that the proposed Notice of Intention does not meet the requirements of a Claim, as the Notice of Intention fails to comply with Court of Claims Act 11(b) by failing to include an adequate description of the incident alleged therein. Movant alleges only that Defendant was negligent and did not comply with Federal, State, and local building codes. However, Movant has not established how the State failed to comply with Federal, State, and local building codes.

As Movant has not submitted a proposed Claim, the Motion for Permission to File a Late Claim is denied without prejudice.

August 7, 2019

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):

Papers Numbered

Notice of Motion, Affirmation

& Exhibits attached 1

Affirmation in Opposition 2


2. It is unclear if Claimant was confined to a cell or was housed in a dormitory.