Pro se Movant's Motion to file a Claim late denied as he submitted only a Notice of Intention, not a Claim. The Notice of Intention was not verified.
|Claimant short name:||HAYES|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Javon Hayes, DIN: 18-B-0400, Pro Se|
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Michael T. Krenrich, 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 pro se Movant, Javon Hayes, to serve and file a late 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]). While Movant seeks permission to file a late Claim in his Notice of Motion, in his affidavit submitted in support of his Motion, Movant requests that the Court allow him to "[f]ile a Late Notice of Intention and Late Claim." He has submitted only 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 the Claim accrued on October 19, 2019 while Movant was incarcerated at Bare Hill Correctional Facility (hereinafter, "Bare Hill"). Movant asserts that, at approximately 7:15 a.m., while he was sleeping, he was assaulted. Movant further asserts that, on the previous evening, he had a verbal altercation with another inmate in the D-2 Housing Unit at Bare Hill. He asserts that the officer on duty was aware of the altercation and failed to act. He further asserts that, if the altercation on the evening of October 18, 2019 had been reported by the housing unit officer, the assault on the morning of October 19, 2019 would have been prevented. He asserts that the housing unit officer was negligent.
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).
In addition, the Court notes that Movant has not set forth who assaulted him on October 19, 2019, or how he has concluded it was the result of the previous evening's verbal altercation.
As Movant has not submitted a proposed Claim, the Motion for Permission to File a Late Claim is denied without prejudice.
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 Claim pursuant to Court of Claims Act § 10(6):
Notice of Motion, Affirmation,
& Exhibit attached 1
Affirmation in Opposition &
Exhibits attached 2