New York State Court of Claims

New York State Court of Claims

RICHIE v. NEW YORK STATE THRUWAY AUTHORITY, #2007-039-027, Claim No. 112704, Motion Nos. M-72493, M-72454


Synopsis


Claimant’s motion for an extension of time to serve the claim on the Attorney General and the Thruway Authority is granted. The Court concludes that it would be an appropriate exercise of its discretion to grant claimant an extension of time to serve her claim since delay in service was attributed to law office failure, and there is no indication from the record of “purposeful delay,” nor does defendant contend that it will suffer any prejudice if claimant is granted an extension of time.

Case Information

UID:
2007-039-027
Claimant(s):
SHANNON R. RICHIE
Claimant short name:
RICHIE
Footnote (claimant name) :

Defendant(s):
NEW YORK STATE THRUWAY AUTHORITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
112704
Motion number(s):
M-72493, M-72454
Cross-motion number(s):

Judge:
James H. Ferreira
Claimant’s attorney:
Grace & Grace, Esqs.By: Michael J. Grace, Esq.
Defendant’s attorney:
Hon. Andrew M. Cuomo
Attorney General of the State of New York
By: Michael W. FriedmanAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 17, 2007
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

In February 2006, claimant moved the Court for permission to file a late claim. By decision and order dated July 10, 2006, the Court (Hard, J.) granted claimant’s request and directed, among other things, that claimant “serve and file the claim in accordance with the Court of Claims Act and the Uniform Rules for the Court of Claims within 60 days of the filing of [its] decision and order.” The decision and order was subsequently filed with the Clerk of the Court on July 19, 2006, as was the claim on August 31, 2006. The claim was then served upon the Attorney General of the State of New York (hereinafter “Attorney General”) on September 28, 2006, but it was not served on the New York State Thruway Authority (hereinafter “Thruway Authority”).

Defendant now moves the Court for an order dismissing the claim pursuant to Court of Claims Act §§ 10 and 11 and CPLR 3211 (a) (2), (7) and (8) on the grounds that the claim was not served upon the Attorney General or the Thruway Authority within 60 days of the Court’s (Hard, J.) decision and order as directed therein. Claimant opposes the motion and cross moves the Court for an extension of time to serve the Attorney General and the Thruway Authority pursuant to CPLR 2004.

After due consideration, the Court concludes that it would be an appropriate exercise of its discretion “not to penalize [claimant] for the error of counsel” and to grant claimant’s request for an extension of time to serve the claim on the Attorney General and the Thruway Authority (Knapek v MV Southwest Cape, 110 AD2d 928, 930 [1985]). “CPLR 2004 vests the trial court with discretion to extend the time to perform any act . . . ‘upon such terms as may be just and upon good cause shown’ ” (Tewari v Tsoutsouras, 75 NY2d 1, 11-12 [1989]). “It is within the court’s power to grant such an extension where it is established . . . that the delay in service was not willful or lengthy and that it did not cause any prejudice to the parties” (A & J Concrete Corp. v Arker, 54 NY2d 870, 872 [1981]). “The Court of Appeals has held that good cause under CPLR 2004 includes law office failure” (Brusco v Davis-Klages, 302 AD2d 674 [2003]; see also Tewari v Tsoutsouras, supra).

Here, it is undisputed that claimant failed to serve the claim within 60 days of the filing of the Court’s (Hard, J.) July 10, 2006 decision and order. In fact, claimant served the claim on the Attorney General on September 28, 2006, which was approximately ten days after expiration of the 60-day mandate, and failed to serve the Thruway Authority. Court of Claims Act § 11 (a) (ii) requires service of the claim on the Thruway Authority, in addition to the Attorney General, when a claim is brought against the Thruway Authority. In support of claimant’s motion, counsel attributes the failure to timely serve the Attorney General or the Thruway Authority to law office failure. More specifically, counsel explains that his office mistakenly believed that it needed to wait for the return of a time-stamped copy of the claim with a docket number before effectuating service and that, as a consequence, service of the claim on the Attorney General was not timely. Counsel attributes claimant’s failure to serve the Thruway Authority to “an inadvertent oversight.” Moreover, there is no indication from the record of “purposeful delay,” nor does defendant contend that it will suffer any prejudice if claimant is granted an extension of time (Brusco v Davis-Klages, supra at 675; see Griffin v John Jay Coll., 266 AD2d 16 [1999]).

Accordingly, claimant’s motion (M-72493) for an extension of time to serve the claim on the Attorney General and the Thruway Authority is granted, and defendant’s motion (M-72454) to dismiss the claim is denied. Timely service on the Attorney General having been effected, claimant is directed to serve the claim on the Thruway Authority within 20 days from the date of filing of this decision and order.


July 17, 2007
Albany, New York

HON. JAMES H. FERREIRA
Judge of the Court of Claims


Papers Considered
:
  1. Notice of Motion to Dismiss dated October 25, 2006;
  2. Affirmation in Support of Motion to Dismiss dated on October 25, 2006 with exhibits;
  3. Notice of Motion for Extension of Time dated November 2, 2006;
  4. Affirmation in Opposition to Motion to Dismiss and in Support of Cross Motion dated on November 2, 2006 with exhibits; and
  5. Affirmation in Reply and Opposition dated on November 13, 2006.