New York State Court of Claims

New York State Court of Claims

MICHAEL v. THE STATE OF NEW YORK, #2005-016-075, Claim No. 111031, Motion Nos. M-70577, CM-70702


Synopsis



Case Information

UID:
2005-016-075
Claimant(s):
EDIA MICHAEL and CHENET DELVA
Claimant short name:
MICHAEL
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
111031
Motion number(s):
M-70577
Cross-motion number(s):
CM-70702
Judge:
Alan C. Marin
Claimant's attorney:
Harry Organek, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik, Esq., AAG
Third-party defendant's attorney:

Signature date:
December 7, 2005
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This is defendant's motion to dismiss the claim of Edia Michael and Chenet Delva. Claimants cross-move for an order "permitting the service made heretofore . . . to be accepted as in compliance with" this Court's May 18, 2005 Decision and Order (the "Previous Order"), and striking the fourth and fifth affirmative defenses in the State's Verified Answer and Amended Verified Answer. The claim arises from an alleged April 13, 2001 incident in which Edia Michael tripped and fell on a torn rug in an office of the Department of Motor Vehicles in Brooklyn. The subject of the Previous Order was claimants' motion for an order treating their notice of intention as a claim pursuant to §10.8 of the Court of Claims Act (the "Act"). In connection with such motion, claimants submitted a proposed amended claim which differed from the notice of intention in that it included a total sum claimed. In granting such motion, the Court directed, inter alia, that within 45 days of filing of the Previous Order, claimants' proposed amended claim[1] be filed with a filing fee pursuant to §11-a of the Act and served on defendant. The basis of defendant's instant motion is that the Amended Claim was served by regular mail, rather than personally or by certified mail, return receipt requested, as set forth in §11.a of the Act.

In granting claimants' motion under §10.8 of the Act, the Court treated the notice of intention (which had been served by certified mail, return receipt requested) as a claim, while also granting claimants permission to file and serve the Amended Claim. It is undisputed that the Previous Order did not state that service of the Amended Claim must be made by certified mail, return receipt requested, or personally, and in the absence of a specific order to the contrary, an amended claim may be served by regular mail. See, e.g., Rodriguez v State of New York, Ct Cl, September 24, 2002 (unreported, claim no. 98912, motion no. M-64882, cross-motion no. CM-65025, Midey, J., UID #2002-009-41[2]). See also CPLR 2103. Defendant has supplied no authority to the contrary (or for that matter, any authority suggesting that following the granting of a §10.8 motion, service must be made on defendant pursuant to §11.a of the Act).

Accordingly, having reviewed the submissions[3], IT IS ORDERED that motion no. M-70577 be denied. IT IS FURTHER ORDERED that cross-motion no. CM-70702 be granted only to the extent that claimants' service of the proposed amended claim by regular mail[4] be deemed as in compliance with this Court's May 18, 2005 Decision and Order, and that defendant's fourth affirmative defense be stricken.[5]


December 7, 2005
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]In the Previous Order, the Court directed that the proposed amended claim be entitled "Claim" when it was filed and served. However, in order to reflect its actual nature, and for ease of reference, it shall be referred to as the "Amended Claim" in this Decision and Order.
  2. [2]This and other decisions of the Court of Claims may be found on the Court's website: www. nyscourtofclaims.state.ny.us.)
  3. [3]The Court reviewed: defendant's notice of motion with affirmation in support and exhibits A through C; claimants' notice of cross-motion with attached affirmation and exhibits A through H; defendant's affirmation in opposition with exhibits A through C; and claimants' reply affirmation.
  4. [4]The claim was served by regular mail twice during the 45-day period directed by the Court. The first time it was not verified, and the second time it was.
  5. [5]Claimants' request that defendant's fifth affirmative defense be stricken is denied as moot because such defense relates to claimants' service of the Amended Claim by certified mail, return receipt requested after the expiration of the 45-day period directed by the Court, service that was not necessary in view of the Court's decision on this motion and cross-motion.