Motion to file a late Notice of Intention to file a Claim denied. Only submitted a Notice of Intention. Not properly verified. Did not submit a proposed Claim.
|Claimant short name:||DENTEL|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||CELLINO & BARNES, P.C.
By: Sareer A. Fazili, Esq.
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Thomas P. Carafa, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||December 1, 2020|
|See also (multicaptioned case)|
For the reasons set forth below, the application of Movant, Hannah Dentel, to serve and file a late Notice of Intention to File a Claim pursuant to Court of Claims Act § 10(6), is denied.
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]). Movant has submitted a proposed "Notice of Intention to File a Claim." 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 the afternoon of October 24, 2019, Movant sought care for her hip from an athletic trainer employed or affiliated with the State University of New York at Potsdam (hereinafter, "SUNY Potsdam")(1) . It is alleged that the trainer failed to oversee and properly apply electric stimulation to Movant's injured hip. This allegedly caused further injury to her hip (Notice of Intention, ¶ 3). It is further alleged that Defendant was negligent in failing to oversee, train, educate, control, and supervise the application of the treatment to Movant's hip and oversee, train, educate, control, and supervise its employees, agents, and contractors.
The Court finds that Movant has moved for permission to File a Late Notice of Intention, which is an improper Motion, and the Court cannot consider the submitted Notice of Intention to be a proposed Claim as it does not meet the requirements of a Claim, because the Notice of Intention fails to comply with Court of Claims Act § 11(b) as the Notice of Intention is not properly verified as required by Court of Claims Act § 11(b) and CPLR 3020(a) and (d). Neither Movant nor her counsel signed the Notice of Intention. The Court further notes that the Notice of Intention is very general and conclusory in describing the alleged negligent act of Defendant.
As Movant has not submitted a proposed Claim, the Motion for Permission to File a Late Notice of Intention to File a Claim is denied, without prejudice to Movant making a proper Motion pursuant to Court of Claims Act § 10(6).
December 1, 2020
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 Notice of Intention to File a Claim pursuant to Court of Claims Act § 10(6):
Notice of Motion, Affirmation
& Exhibit attached 1
Amended Notice of Motion(2)
Affirmation & Exhibit attached 2
Affirmation in Opposition 3
1. Apparently, Movant was a student at SUNY Potsdam at the time, though it was not stated.
2. According to counsel's cover letter attached to the Amended Notice of Motion, his office failed to serve the original Motion upon Defense counsel, so he prepared an Amended Notice of Motion and served that, together with the original papers he filed with the Court, upon Defendant.