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
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 ). “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 ). “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 ). “The Court of Appeals has held that good cause
under CPLR 2004 includes law office failure” (Brusco v
Davis-Klages, 302 AD2d 674 ; see also Tewari v
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 ).
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.