|Claimant short name:||CLARKE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||RICHARD E. SISE|
|Claimant's attorney:||JAMAHL CLARKE, PRO SE|
|Defendant's attorney:||HON. LETITIA JAMES, ATTORNEY GENERAL
BY: Darren Longo, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||October 9, 2020|
|See also (multicaptioned case)|
The following papers were read on Claimant's motion for leave to late file a claim pursuant to Court of Claims Act § 10 (6):
1. Notice of Motion filed August 4, 2020;
2. Affidavit of Jamahl Clarke sworn to July 29, 2020
3. Proposed Claim verified July 29, 2020 with Exhibits annexed;
4. Letter by Darren Longo dated September 8, 2020.
Filed papers: None
A motion has been presented, pursuant to Court of Claims Act § 10 (6), for permission to late file a claim. Under that provision a person who fails to file or serve a claim or a notice of intention, may, in the discretion of the court, be permitted to file such claim at any time before the statute of limitations expires. The late filing provision lists six criteria for the court to consider in determining if the filing should be permitted: whether the delay in filing was excusable; whether the state had notice of the essential facts constituting the claim; whether the state had an opportunity to investigate the circumstances underlying the claim; whether the claim appears to be meritorious; whether the failure to file or serve a timely claim or to serve upon the attorney general a notice of intention resulted in substantial prejudice to the state; and whether the claimant has any other available remedy. Other factors deemed relevant by the court may also be considered.
The proposed claim is based on allegations the items of personal property were taken from claimant's cell by correction officers and not returned. In support of the application claimant has submitted an affidavit in which he appropriately addresses all of the factors relevant to an application for leave to late file a claim. In response to the motion defendant has submitted a letter indicating that it takes no position with respect to the motion. Inasmuch as claimant has satisfactorily addressed the statutory factors and as defendant does not oppose the motion, the application should be granted.
Accordingly, it is
ORDERED, that the motion is granted contingent upon claimant serving and filing the proposed claim together with the appropriate filing fee, or an application pursuant to CPLR 1101 (f)(1) , within 30 days of the filing of this decision and order.
October 9, 2020
Albany, New York
RICHARD E. SISE
Judge of the Court of Claims
1. Although claimant submitted an affidavit in support of an application pursuant to CPLR 1101 (f) with this motion, the application is not appropriate unless and until the court has granted leave to late file. Therefore, the affidavit should be re-submitted with the claim filing.