New York State Court of Claims

New York State Court of Claims

LESIE v. THE STATE OF NEW YORK, #2002-005-501, Claim No. 96451, Motion Nos. M-64385, CM-64580


Synopsis


Defendant's motion for dismissal of the claim herein is denied and Claimant motion for an extension of time to serve a second amended claim is granted.

Case Information

UID:
2002-005-501
Claimant(s):
IN THE MATTER OF THE CLAIM OF EVETTE LESIE, ALSO KNOWN AS EVETH LESLIE
Claimant short name:
LESIE
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
96451
Motion number(s):
M-64385
Cross-motion number(s):
CM-64580
Judge:
DONALD J. CORBETT, JR.
Claimant's attorney:
Paul William Beltz, P.C.By: Stephen R. Foley, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 8, 2002
City:
Rochester
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

On January 16, 2002, the following papers, numbered from 1 to 7, were read on motion by Defendant for dismissal of the claim and on cross-motion by Claimant for an extension of time to serve a second amended claim:

1, 2 Notice of Motion, Affirmation and Exhibits Annexed

3, 4 Cross-Notice of Motion, Affirmation and Exhibits Annexed
  1. Reply Affirmation
6, 7 Filed Papers: Claim, Decision and Order in Motion Nos. M-61088 & CM-61512

Upon the foregoing papers, the motion is denied and the cross-motion is granted.

In this motion the Defendant seeks dismissal of the claim herein for the Claimant's failure to have served and filed the Second Amended Claim in accordance with my earlier order in Motion No. M-61088 and Cross-Motion No. CM-61512, dated July 13, 2001 and filed on July 30, 2001.

In that order I permitted Claimant sixty days from service of a file-stamped copy of that order to serve and file a Second Amended Claim. Service of the order was completed on August 8, 2001, and, allowing for five days for service by mail (CPLR 2103[b][2]), service and filing of the Second Amended Claim should have been completed on or about October 12, 2001. This was not accomplished, and Defendant seeks dismissal of the claim as it alleges that Claimant seems to have abandoned the relief she had achieved.

Nothing is as simple as it looks. In her cross-motion, which seeks an extension of time to serve (and presumably file) the aforementioned Second Amended Claim, Claimant acknowledges non-compliance, erroneously relying upon her inclusion of the Second Amended Claim as an exhibit in the moving papers seeking permission to file the same for services purposes. She ostensibly believed that this had satisfied my earlier order. It clearly did not, and furthermore, it neglected the filing requirement.

I have considered Defendant's arguments with respect to the purported lateness of the Cross-Notice of Motion pursuant to CPLR 2215, and simply note that it was able to reply to the cross-motion. I am also aware that the Second Amended Claim which had been affixed as an exhibit to the earlier cross-motion was a proposed amendment, had not been signed or verified by the Claimant until after the cross-motion's submission to the court, and thus, could hardly have sufficed to have been considered the Second Amended Claim for service purposes, let alone filing purposes.

That being said, the reasoning leading to that earlier order is not compromised by Claimant's failure to timely comply with the service and filing directives, a deficiency akin to law office failure (CPLR 2001). As I find that no substantive right of the Defendant has been compromised, and that no prejudice to the Defendant is argued or ascertainable, the motion to dismiss is denied, and the cross-motion is granted. Claimant shall have 30 days from service of a file-stamped copy of this order (1) to serve the Defendant and (2) file an original and two copies of the Second Amended Claim with the Clerk. The Clerk is directed to serve the order herein upon the parties.

Furthermore, as reiterated by the Defendant in its reply papers, this claim has had a tortured history, and the Claimant has previously been ordered to appear personally before the Court for the purpose of taking her examination before trial. Previous orders directed such appearance on September 7, 2000, and then again within ninety days of filing of an order on February 7, 2001 (Motion Nos. M-61088, CM-61512) (see Exhibits A and B to the Defendant's reply affidavit). In each instance, Claimant's failure to appear was excused as Claimant's counsel made representations about ongoing efforts to secure Claimant's return to the United States from her deportation to Jamaica. I have been as accommodating as possible to allow Claimant the opportunity to pursue her claim in this court. However the requests for extensions and deference to Claimant's immigration complexities have run their course, and no further extensions will be granted.

Accordingly, it is further Ordered: (1) that the examination before trial on oral questions of Claimant Evette Lesie, also known as Eveth Leslie, be taken at the Court of Claims in Rochester, on the 26th day of April, 2002, commencing at 9:30 a.m. in the forenoon of that day and continuing until complete and,

(2) If Claimant fails to personally appear at said time and date, the claim herein will be deemed dismissed for her default (22 NYCRR 206.15), and failure to prosecute (CPLR 3216[a]), and no further order of this Court will be required.


February 8, 2002
Rochester, New York

HON. DONALD J. CORBETT, JR.
Judge of the Court of Claims