New York State Court of Claims

New York State Court of Claims

FILES v. THE STATE OF NEW YORK, #2000-015-071, Claim No. 101936, Motion No. M-61850


Allegations of law office failure coupled with proof of potentially meritorious defense (jurisdictional defect) sufficient to merit granting of motion to extend time to appear and answer pursuant to CPLR 3012(d).

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Eddie Files, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, Esquire Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 25, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


The motion of the defendant for an order pursuant to CPLR 3012(d) extending its time to appear and answer until forty days after the date of filing of this decision and order is granted. This claim, by an inmate proceeding pro se, alleges medical malpractice in the provision of improper medication during the period from June 24 to July 24, 1999. The claim was served upon the Attorney General by ordinary mail and received at his office on February 11, 2000. Pursuant to 22 NYCRR 206.7 (a) the defendant had until March 22, 2000 in which to answer or move to dismiss.

According to defense counsel, a pre-answer motion to dismiss the claim based upon the improper method of service was prepared on March 2, 2000. The motion was typed by Law Department Document Specialist Ruth Kovits, who also prepared cover letters dated March 3, 2000 forwarding the motion to the claimant and to the Clerk of the Court. In addition, Ms. Kovits signed an affidavit of service by mail of the motion papers on March 3, 2000. Defense counsel received a letter from the Clerk of the Court on March 27, 2000 indicating that a motion was to be heard on April 19, 2000. Counsel states that he misread the letter and believed that it referred to his motion to dismiss. Instead, the letter referred to the claimant's poor person application which was denied by decision and order of this Court filed on May 22, 2000. Upon receipt of that decision and order, defense counsel investigated the matter and discovered that the original motion papers had not been filed with the Clerk of the Court and may not have been served upon the claimant. According to defense counsel, Ms. Kovits sustained serious injuries as the result of a trip and fall accident on March 7, 2000 and has been absent from work since that date.

CPLR § 3012 (d) provides in pertinent part that:
Upon the application of a party, the court may extend the time to appear or plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default.
There is case law indicating that a motion under CPLR 3012 (d) should be determined based upon a consideration of "the absence of prejudice to the plaintiffs, the meritorious nature of the defense, and the public policy in favor of resolving cases on the merits" (Van Man Adhesives Corp. v City of New York, 236 AD2d 465). However, the Third Department has held that it is not necessary to establish a potentially meritorious defense. Rather the key inquiry is whether the moving party has demonstrated a reasonable excuse for the default (Ponemon v Van Loan, 188 AD2d 843). The same Court has also held that a proposed excuse may be accepted by the Court even if "characterized as law office failure" (American Sec. Ins. Co. v Williams, 176 AD2d 1094, 1095).

Here, the proposed excuse is the inadvertence of defense counsel in failing to note that the letter from the Clerk of the Court calendering the motion for April 19, 2000 did not refer to the defendant's dismissal motion as well as the serious injuries and continual absence from work sustained by Ms. Kovits. The Court finds the proposed excuses to be acceptable. To the degree that a demonstration of potential merit is required, the movant has done so by presenting documentary proof tending to show that the claim was served upon the Attorney General by ordinary mail, a jurisdictional defect giving rise to a potentially meritorious defense (Philippe v State of New York, 248 AD2d 827). Finally, there is no basis upon which to rest a finding of prejudice given the claimant's failure to submit papers in opposition to the motion.

August 25, 2000
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
1. Notice of motion dated June 5, 2000;
  1. Affirmation of Joel L. Marmelstein dated June 5, 2000, with exhibits.