New York State Court of Claims

New York State Court of Claims

GOMEZ v. THE STATE OF NEW YORK, #2009-032-141, Claim No. 116274, Motion No. M-76520


Synopsis



Case Information

UID:
2009-032-141
Claimant(s):
EDDIE GOMEZ
Claimant short name:
GOMEZ
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116274
Motion number(s):
M-76520
Cross-motion number(s):

Judge:
JUDITH A. HARD
Claimant’s attorney:
Eddie Gomez, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Roberto Barbosa, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
September 1, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

For the reasons set forth below, this Court grants Defendant’s motion to strike the Amended Claim filed by Claimant.


The underlying claim, which sounds in bailment, was filed on January 5, 2009. Defendant’s Verified Answer was served on January 22, 2009, and filed with the Clerk of the Court on January 26, 2009. An Amended Claim was filed with the Clerk of the Court on February 26, 2009. Defendant alleges that it was never served with said Amended Claim and that it only became aware of the same when it received correspondence from the Clerk of the Court acknowledging that it had been filed.

In opposition to Defendant’s motion, Claimant acknowledges that he did not serve the Amended Claim upon Defendant. He alleges that it was because he had requested, at the time he filed the Amended Claim, that the Clerk of the Court effect service upon Defendant and when he did not hear back from the Clerk of the Court, he believed his request had been granted.

CPLR 3025 allows a party to amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it. Section 206.7(b) of the Uniform Rules for the Court of Claims extends the statutory time provided for in the CPLR to forty days, such that a party may amend a pleading once without leave of Court within forty days after service of a pleading responding to it.

In the present case, Defendant’s responsive pleading was served on January 22, 2009. Accordingly, Claimant’s Amended Claim should have been served upon Defendant on or before March 3, 2009. Because Claimant failed to effect service upon Defendant on or before said date, this Court is constrained to strike Claimant’s Amended Claim.

Claimant’s mistaken belief that the Clerk of the Court would effect service upon Defendant and his ignorance of the law are not acceptable explanations for the failure to serve a timely amended claim. Claimant’s allegation that he did not have sufficient funds is also not acceptable, particularly where, as here, Claimant is incarcerated and not even required to outlay funds to mail legal papers. The correctional facility provides limited free postage on a weekly basis and if the claimant exceeds his weekly allotment and has no funds available in his prison account, the correctional facility will advance funds for postage on legal mail (7 NYCRR 721.3).

Based upon the foregoing, Defendant’s motion to strike the Amended Claim is granted.




September 1, 2009
Albany, New York

HON. JUDITH A. HARD
Judge of the Court of Claims


Papers Considered:


1. Notice of Motion and Affirmation of Roberto Barbosa, AAG, dated April 8, 2009.

2. Claimant’s Affirmation in Opposition to Defendant’s Motion to Dismiss Amended Claim, dated May 12, 2009, with Exhibits.

Filed Papers: Claim, filed January 5, 2009; Verified Answer, filed January 26, 2009.