New York State Court of Claims

New York State Court of Claims

GAINES v. THE STATE OF NEW YORK, #2008-028-501, Claim No. 110343, Motion No. M-71920


Synopsis



Case Information

UID:
2008-028-501
Claimant(s):
GERALD GAINES
Claimant short name:
GAINES
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110343
Motion number(s):
M-71920
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant’s attorney:
GERALD GAINES, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERAL
BY: Frederick H. McGown, III, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
January 9, 2008
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on defendant’s motion for an order of dismissal:

1. Original Notice of Motion and Supporting Affirmation by Frederick H. McGown, III, Esq., AAG, with annexed Exhibits;

2. Corrected Notice of Motion and Supporting Affirmation of Frederick H. McGown, III , Esq., AAG, with annexed Exhibits, filed June 27, 2006;


3. Claim, filed January 10, 2005;


4. Verified Answer, filed February 3, 2005; and


5. Amended Claim, filed May 16, 2006.

The original claim in this matter was filed on January 10, 2005 alleging that while claimant, Gerald Gaines (claimant), was incarcerated at Clinton Correctional Facility he was the victim of excessive force and an assault, and that he was denied medical care from the injuries he sustained on May 11, 2004. Defendant, State of New York (defendant), thereafter answered the claim (Verified Answer filed February 3, 2005) and engaged in discovery until a subsequent pleading was filed which the Clerk of the Court took as an amended claim on May 16, 2006.

Thereafter, the State made the present motion to dismiss this latter filed pleading, evidently under the impression it was an original claim because, among other reasons, it was served by regular mail in contravention of the Court of Claims Act. In recognition that the Court had taken the claim as an amended claim, defendant then filed a corrected motion arguing in the alternative that the amended claim should be dismissed because leave of the Court was not granted prior to the filing of such. Claimant has not responded to the motion.

The Uniform Rules for the Court of Claims provides in relevant part that:
Pleadings may be amended in the manner provided by CPLR 3025, except that a party may amend a pleading once without leave of court within 40 days after its service, or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it (22 NYCRR 206.7 [b]).
Because the amended claim was not presented within the time permitted by the above-stated rule, leave of the Court or stipulation of all the parties (22 NYCRR 206.7 [c]) was required before the pleading could be amended or supplemented. Inasmuch as neither of these conditions were satisfied prior to service of the new pleading, claimant had no right to serve an amended claim. Accordingly defendant’s motion, inasmuch as it requests dismissal of the amended claim, is granted and the amended claim is stricken.
January 9, 2008
Albany, New York
HON. RICHARD E. SISE
Judge of the Court of Claims