Motion for permission to serve and file a late Claim pursuant to CCA § 10(6) denied without prejudice.
|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.|
|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|
|See also (multicaptioned case)|
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):
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.