New York State Court of Claims

New York State Court of Claims

SMITH v. THE STATE OF NEW YORK, #2004-028-527, Claim No. 101137-A, Motion No. M-67938


Synopsis


Case Information

UID:
2004-028-527
Claimant(s):
JOHN SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
101137-A
Motion number(s):
M-67938
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
HAROLD A. BALSAM, ESQ.
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joel L. MarmelsteinAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 28, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Defendant's motion to dismiss the Claim:
1) Notice of Motion and Affirmation in Support of Assistant Attorney General Joel L. Marmelstein (Marmelstein Affirmation) filed January 23, 2004;

2) Opposition - NONE.


Filed Papers: Claim, filed September 27, 1999; Amended Claim filed January 21, 2003;

Decisions and Orders; Smith v State of New York, Ct Cl, Fitzpatrick, J.,
December 17, 2002; Smith v State of New York, Ct Cl, Sise, J., September 26, 2003.


Defendant has again timely moved by pre-answer motion to dismiss the instant Claim premised upon Claimant's failure to timely serve an Amended Claim, as directed by this Court which followed an earlier decision and order which granted Claimant's application to treat his timely served Notice of Intention as a claim pursuant to Court of Claims Act § 10(8) (see Decision and Order, Smith v State of New York, Ct Cl, Fitzpatrick, J., December 17, 2002 [unpublished]). As this is not the parties' first appearance before this Court on this issue, familiarity with the facts is presumed. Claimant has not opposed the motion.

Defendant asserts that Claimant has failed to comply with this Court's prior Order which required Claimant, inter alia, to serve and file the Amended Claim on or before October 10, 2003. The Court has reviewed its records and finds no filing with it of either an affidavit of service or an Amended Claim subsequent to its September 26, 2003 decision and order. In light of the foregoing, and without opposition from Claimant, the Court finds that Claimant has failed to comply with the conditions set for excusing Claimant's earlier default.

Accordingly, the motion is granted and Claim No.101137-A shall be and hereby is dismissed.


April 28, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims