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
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
). 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
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
be deemed as in compliance with this Court's May 18, 2005 Decision and Order,
and that defendant's fourth affirmative defense be