New York State Court of Claims

New York State Court of Claims

MANIACI v. THE STATE OF NEW YORK, #2005-009-012, Claim No. 109412, Motion No. M-69456


Synopsis


Claimant's motion seeking an extension of time to serve and file her certificate of merit was granted, and certain affirmative defenses of the State were dismissed.

Case Information

UID:
2005-009-012
Claimant(s):
CHRISTINA MANIACI
Claimant short name:
MANIACI
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
109412
Motion number(s):
M-69456
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
BERNSTEIN & BERNSTEIN, LLP
BY: Stephen Jacobson, Esq.,Of Counsel.
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Maureen A. MacPherson, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
February 23, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Claimant has brought this motion seeking an extension of time in which to serve and file a certificate of merit. Additionally, claimant seeks an order striking the First and Second Affirmative Defenses set forth in defendant's Verified Answer.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation in Support, with Exhibits 1,2


Affirmation in Opposition 3

In its First Affirmative Defense, defendant alleges that claimant has failed to comply with CPLR § 3012-a, in that she did not serve and file a certificate of merit with her claim. Admittedly, claimant failed to serve and file her required certificate of merit, and by this motion seeks an order permitting her to do so at this time.

The initial failure of a claimant to serve and file a certificate of merit does not equate to a default in pleading (Dye v Leve, 181 AD2d 89; Kolb v Strogh, 158 AD2d 15). Accordingly, in the absence of any prejudice to the defendant, claimant is hereby granted permission to serve and file the required certificate of merit (a copy of which has been submitted with her motion papers).

With regard to the Second Affirmative Defense, pertaining to service of the notice of intention and/or the claim, defendant's attorney, in her response papers, has agreed that this jurisdictional defense is without merit and that the defense should be withdrawn.

Accordingly, based upon the foregoing, it is

ORDERED, that claimant, within 30 days from the filing date of this Decision and Order, shall serve and file a certificate of merit pursuant to CPLR §3012-a; and it is further

ORDERED, that upon such service and filing, the First Affirmative Defense set forth in defendant's Verified Answer shall be deemed stricken; and it is further

ORDERED, that the Second Affirmative Defense set forth in defendant's Verified Answer is hereby stricken.

February 23, 2005
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims