New York State Court of Claims

New York State Court of Claims

McALLISTER v. THE STATE OF NEW YORK, #2001-011-571, Claim No. 104106, Motion No. M-63612


Synopsis


Claimant's motion for an order directing default judgment on the basis that an answer was not served timely by defendant is denied.

Case Information

UID:
2001-011-571
Claimant(s):
CHARLES McALLISTER
Claimant short name:
McALLISTER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104106
Motion number(s):
M-63612
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Charles McAllister, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Glenn C. King, Esq.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 8, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant moves for an order directing default judgment on the basis that an answer was notserved timely by defendant.

Under the Uniform Rules for the Court of Claims §206.7, service of all responsive pleadings shall be made within 40 days of service of the pleading to which it responds.

In the present case, the claim was sent by certified mail, return receipt requested, on April 7, 2001and received by defendant on April 11, 2001. Service by certified mail upon the attorney general is not complete until the claim is received (CCA §11). The verified answer, dated May 18, 2001, was mailed to claimant on that same day and received by claimant on May 22, 2001. In accordance with CPLR 2103(b)(2)(c), service of an answer is complete upon mailing. May 18, 2001, the date of service, is within the 40 day period allotted for defendant to answer the claim. Accordingly, motion is denied.


August 8, 2001
Saratoga Springs, New York

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



Papers Submitted:

  1. Notice of Motion dated June 4, 2001
  2. Affidavit in Support of Charles McAllister sworn to the 7th day of June, 2001 with exhibits annexed
  3. Affirmation of Glenn C. King, Esq. dated June 25, 2001