New York State Court of Claims

New York State Court of Claims

Henderson v. STATE OF NEW YORK, #2004-018-324, Claim No. NONE, Motion No. M-68670


Synopsis


Movant's request for an extension of time to file late claim is granted.

Case Information

UID:
2004-018-324
Claimant(s):
MARGARET HENDERSON
Claimant short name:
Henderson
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
NONE
Motion number(s):
M-68670
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
SHANLEY LAW OFFICESBy: Kristin A. Shanley, Esquire
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Edward F. McArdle, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
August 24, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The movant has moved for an order granting an extension of time to file and serve the

"Notice of Claim" in accordance with a prior Decision and Order of this Court (M-67436). Defendant has submitted a letter advising that it takes no position on this motion.

On March 29, 2004 a Decision and Order of this Court was filed, granting Movant's motion authorizing the filing and service of a proposed late claim. The Decision and Order specifically directed that the proposed claim be filed and served within "45 days of the date this Decision and Order is filed with the Clerk of the Court."

Movant promptly served a copy of the claim upon the Assistant Attorney General by certified mail return receipt requested, on April 5, 2004. Service of the claim was completed on April 7, 2004, as evident from the copy of the return receipt card attached to Movant's motion documents. However, Movant failed to file a copy of the claim with the Clerk of the Court. Counsel attributes the failure to an oversight and now seeks an extension of time to properly file and serve the claim.

The Court will grant Movant's motion (Griffin v John Jay College, 266 AD2d 16; Oparaji v City University of New York, Ct Cl, unpublished decision and order of Lebous, J., signed April 6, 2000, Cl No. None, Motion No. M-61212, UID # 2000-019-510).[1] This Court found, by its prior Decision and Order (M-67436) that the Movant has a potentially meritorious claim, and upon balancing the factors set forth in Court of Claims Act § 10(6) gave Movant permission to file a late claim. Movant properly served the attorney general with a copy of the claim within the time frame set forth in that prior Decision and Order, and defendant has already served a verified answer and discovery demands. Defendant has not asserted any prejudice and the Court does not find that Defendant will suffer any prejudice from the granting of Movant's motion.

Accordingly, the Court grants Movant's motion and directs that Movant file an original and two copies of the claim served upon the Assistant Attorney General on April 7, 2004 with the Clerk of the Court of Claims on or before October 1, 2004, along with payment of the filing fee or a motion pursuant to CPLR 1101 in accordance with Court of Claims Act section 11-a..


August 24, 2004
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court has considered the following documents in deciding this motion:


Notice of Motion...............................................................................................1


Affidavit of Kristin A. Shanley, Esquire, in support, with attachments.............2


Letter from Edward F. McArdle, Esquire, Assistant Attorney General

dated July 6, 2004...................................................................................3


[1]But see, Yackle v State of New York and New York State Thruway Authority, Ct Cl, unpublished decision and order of Minarik, J., signed March 15, 2004, Cl No. None, Motion No. M-66988, UID #2004-031-018, in which Judge Minarik held that a movant seeking relief for the failure to comply with a prior Decision and Order granting permission to file a late claim must meet the requirements of CPLR 5015.