New York State Court of Claims

New York State Court of Claims

MOREL v. GLENN S. GOORD, Commissioner, State of New York Department of Correctional Services; CHRIST T. MELLAS, Superintendent, Watertown Correctional Facility, #2006-018-522, Claim No. 108816, Motion No. M-71772


Synopsis


Defendant’s motion is granted to the extent it may file an Answer to the original claim within 15 days of the date this Decision and Order is filed with the Clerk of the Court.

Case Information

UID:
2006-018-522
Claimant(s):
PEDRO MOREL
Claimant short name:
MOREL
Footnote (claimant name) :

Defendant(s):
GLENN S. GOORD, Commissioner, State of New York Department of Correctional Services; CHRIST T. MELLAS, Superintendent, Watertown Correctional Facility
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108816
Motion number(s):
M-71772
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant’s attorney:
PEDRO MORELPro Se
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:
July 11, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant brings a motion to dismiss the claim on the ground that Claimant failed to file

and serve an amended claim as directed by a Decision and Order of this Court filed July 9, 2004. Claimant has not responded to the motion.

Claimant made a pre-answer motion (M-68016) seeking permission to amend his claim to add the State of New York as a party. The Court, in its Decision and Order filed July 9, 2004, (M-68016), granted the motion and directed Claimant to file and serve his amended claim within 45 days of the date the Decision and Order was filed with the Clerk of the Court. Claimant had until August 23, 2004, to file and serve his amended claim. Claimant never did. In anticipation of Claimant’s service of an amended claim, Defendant did not interpose an answer to the original claim and now seeks dismissal of the claim for failure to comply with the Court’s Order, or in the alternative, an extension of time to interpose an answer to the original claim.

Claimant’s failure to file an amended claim, as he was permitted to do, does not give rise to a reason to dismiss the original claim. The amendment authorized by this Court’s Decision and Order permitted the State of New York to be named as a proper party defendant. However, even when the State is not named as a party, if properly served with the claim, the absence of the State in the caption has been held to be a mere procedural irregularity (see Great Eastern Mall, Inc. v Condon, 36 NY2d 544; Schwartzberg v State of New York, 121 Misc 2d 1095, affd 98 AD2d 902; Morel v State of New York, Ct Cl, Fitzpatrick, J., July 9, 2004, Claim No. 108816, Motion Nos. M-68015 and M-68016).

The Court will grant Defendant’s request to extend its time to interpose an answer to the original claim, as the request is made before Claimant sought a default judgment, and there is no indication that the Claimant will be prejudiced (see Goldman v City of New York, 287 AD2d 482, 483; Horowitz v McDuffie, 199 AD2d 758, 759). Defendant should serve and file a verified answer within 15 days of the date this Decision and Order is filed with the Clerk of the Court.

Defendant’s motion is denied in part and granted in part as set forth herein.


July 11, 2006
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


Affirmation of Edward F. McArdle, Esquire, Assistant Attorney

General, in support, with exhibit attached thereto..................2


No response was received from the Claimant.