Motion for permission to serve and file late claim denied without prejudice with leave to renew; motion papers, including the proposed claim, filed with the Chief Clerk were not served upon the Attorney General.
|Claimant(s):||STEVEN J. SEAMANS|
|Claimant short name:||SEAMANS|
|Footnote (claimant name) :||The caption is amended to reflect Movant's name only.|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :||The Court amends the caption sua sponte to reflect the State of New York as the only proper Defendant.|
|Judge:||CATHERINE E. LEAHY-SCOTT|
|Claimant's attorney:||Steven J. Seamans, Pro Se|
|Defendant's attorney:||Hon. Letitia James, New York State Attorney General
By: Ray A. Kyles, Esq., Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 17, 2020|
|See also (multicaptioned case)|
Pro se Movant Steven J. Seamans moves pursuant to Court of Claims Act § 10 (6) for permission to serve and file a late claim for "Medical Malpractice and Deliberate Indifference" (Proposed Claim ¶ 3).(3) In particular, Movant alleges that he suffered a heart attack on February 21, 2019 while incarcerated at Cayuga County Jail. Movant was transferred first to Auburn Memorial Hospital and then SUNY Upstate Medical University Hospital ("Upstate) "for a stint [sic] operation" (id. ¶ 5). Movant avers that Upstate failed to adequately treat him and, as a result thereof, he suffered six heart attacks between February 23 and February 24, 2019.
Defendant opposes the motion arguing, among other things, that the motion should be denied for Movant's failure to attach a proposed claim (see Affirmation of Ray A. Kyles, Esq., Assistant Attorney General, dated July 23, 2020 ¶¶ 4-5). In support of this contention, Defendant attaches the motion papers served upon the Attorney General's Office, which, notably, does not include the proposed claim filed with the Chief Clerk of the Court (see id. Ex A). Additionally, the Court notes that the notice of motion and affidavit in support of the motion served upon the Attorney General differ from those filed with the Chief Clerk of the Court (compare id. Ex A [undated Notice of Motion with return date of March 16, 2020 and affidavit in support of motion sworn to on February 20, 2020 served upon the Attorney General], with Notice of Mot, dated May 26, 2020 [motion filed with Chief Clerk returnable on June 21, 2020]; Seaman's Aff in Supp of Mot, sworn to on May 21, 2020).
Attached to the motion papers Movant filed with the Chief Clerk is an Affidavit of Service, sworn to on May 21, 2020, which avers that the motion papers were mailed to the Attorney General by certified mail, return receipt requested on May 26, 2020 (see Aff of Service). Movant's assertion that he mailed the motion papers five days after he signed the affidavit renders the affidavit untrustworthy and lacking probative value on the issue of service (see Rivera v State of New York, UID No. 2019-040-108 [Ct Cl, McCarthy, J., Nov. 8, 2019]; Dukes v State of New York, UID No. 2017-038-513 [Ct Cl, DeBow, J., Feb. 10, 2017]).
Since it appears the motion papers filed with the Chief Clerk of the Court were not served on the Attorney General's Office, Movant's application for permission to file a late claim is denied with leave to renew upon proper service of all motion papers, including the proposed claim, on the Attorney General's Office (see Sanchez v State of New York, UID No. 2016-015-176 [Ct Cl, Collins, J., Nov. 3, 2016]; see also Texidor v State of New York, UID No. 2016-032-164 [Ct Cl, Hard, J., Jan. 4, 2017]; DeLeon v State of New York, UID No. 2014-048-137 [Ct Cl, Bruening, J., Apr. 22, 2014]; Ponce v State of New York, UID No. 2013-040-043 [Ct Cl, McCarthy, J., June 14, 2013]).
Accordingly, it is hereby:
ORDERED Motion No. M-95608 is denied without prejudice with leave to renew upon proper service of all motion papers, including the proposed claim, on the Attorney General's Office.
September 17, 2020
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims
The Court considered the following in deciding this motion.
(1) Notice of Motion, dated May 26, 2020.
(2) Affidavit of Steven J. Seamans, in Support of Motion for Permission to File a Late Claim, sworn to on May 21, 2020, with exhibits.
(3) Proposed Claim, dated May 26, 2020.
(4) Affidavit of Service of Motion, sworn to on May 21, 2020.
(5) Affirmation of Ray A. Kyles, Esq., Assistant Attorney General, dated July 23, 2020, with exhibits.
(6) Claimant's Letter, dated August 3, 2020.
1 By Executive Order 202 et seq., Governor Andrew M. Cuomo extended the tolling of "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state." The parties have consented to a return date of September 16, 2020 for the above motion.