New York State Court of Claims

New York State Court of Claims

BROCK v. THE STATE OF NEW YORK, #2001-011-594, Claim No. 104300, Motion No. M-63740


Synopsis


Claimant's motion the motion to withdraw the claim is granted and the claim is dismissed without prejudice to an application for permission to late file the claim.

Case Information

UID:
2001-011-594
Claimant(s):
KEITH BROCK
Claimant short name:
BROCK
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104300
Motion number(s):
M-63740
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
Keith Brock, 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:
October 25, 2001
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant, after receipt of the answer which raises as an affirmative defense the manner ofservice of the claim, has moved for leave to withdraw the claim and resubmit. Although the period for timely presentment of the claim may not have expired at the time the motion was made, it appears that the time for serving the claim had passed by the return date of the motion. Thus, claimant's hope of withdrawing the claim and re-serving in a proper manner within the time required by statute would likely be unsuccessful. However, defendant in the papers submitted in response to the motion has indicated that in the event the claim is not withdrawn it will pursue dismissal of the claim based on improper manner of service. Consequently, inasmuch as claimant concedes that the claim was not served in a proper manner, no practical purpose would be served by refusing the request to withdraw simply because the claim cannot now be timely served. Whether the claim is withdrawn or defendant makes a motion to dismiss the result would be the same: dismissal of the claim. Accordingly, the motion to withdraw the claim is granted and the claim is dismissed without prejudice to an application for permission to late file the claim.

October 25, 2001
Saratoga Springs, New York

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



Papers Submitted:

  1. Notice of Motion sworn to the 1st day of July, 2001
  2. Affirmation of Eileen E. Bryant, Esq. dated July 31, 2001 with exhibits annexed