New York State Court of Claims

New York State Court of Claims

KALWASINSKI v. THE STATE OF NEW YORK, #2001-011-568, Claim No. 104011, Motion No. M-63525


Synopsis


Defendant's motion to extend the State's time to appear or answer, or in the alternative, to compel the acceptance of the answer pursuant to CPLR 3012(d) is granted.

Case Information

UID:
2001-011-568
Claimant(s):
MITCHELL KALWASINSKI
Claimant short name:
KALWASINSKI
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104011
Motion number(s):
M-63525
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Mitchell Kalwasinski, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Eileen E. Bryant, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 1, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Defendant has made a motion to extend the State's time to appear or answer, or in thealternative, to compel the acceptance of the answer pursuant to CPLR 3012 (d).

The claim arises out of an alleged property loss while claimant was housed at Upstate Correctional Facility. The claim was served upon the Attorney General on March 23, 2001. The answer was not served upon claimant until May 17, 2001; 15 days after the forty day period provided for serving an answer (see, Uniform Rules for the Court of Claims §206.7).

In accordance with CPLR 3012(d), "a motion to extend the time to serve an answer may be granted upon a showing of reasonable excuse for delay or default and is addressed to the sound discretion of the trial court" (De Nooyer Chevrolet v Polsinello Fuels, 251 AD2d 871).

Defendant maintains the delay was due to law office failure. When the claim arrived on March 23, 2001, the defendant mistakenly noted that the answer was due by 5/20/01 instead of 5/02/01 and the attorney assigned to the matter failed to independently calculate the due date. As soon as this mistake was discovered, the answer was immediately prepared and served.

Under CPLR 2005, "Upon an application satisfying the requirements of subdivision (d) of section 3012 ..., the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay ... resulting from law office failure." This is particularly true when the "delay [ is ] a minimal one" and does not prejudice the claimant.(Wagenknecht v Government Employees Ins. Co., 97 AD2d 407, 409). Inasmuch as there has been no showing that the short delay has caused any prejudice, the motion is granted. The time for service is extended and the answer served on May 17, 2001 is deemed timely nunc pro tunc.

August 1, 2001
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims


  1. Notice of Motion dated May 18, 2001
  2. Affirmation of Eileen E. Bryant, Esq. dated May 18, 2001