New York State Court of Claims

New York State Court of Claims

LEVOLA v. THE STATE OF NEW YORK, #2009-044-514, Claim No. 115904, Motion No. M-75863


Synopsis


Defendant’s motion to dismiss untimely claim (filed beyond time set forth in decision granting claimant permission to late file) is granted.

Case Information

UID:
2009-044-514
Claimant(s):
MARK W. LEVOLA
Claimant short name:
LEVOLA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115904
Motion number(s):
M-75863
Cross-motion number(s):

Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
MARK W. LEVOLA, Pro se
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: James E. Shoemaker, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 25, 2009
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

After receiving permission to late file (Levola v State of New York, Ct Cl, July 30, 2008, Schaewe, J., Claim No. None, Motion No. M-73066), claimant filed this claim seeking recovery for medical malpractice. In lieu of filing and serving an answer, defendant now moves to dismiss the claim based upon its untimely filing and service. Claimant has not responded. By Decision and Order dated July 1, 2008, the Court granted claimant permission to late file a claim setting forth causes of action for medical malpractice for certain gastrointestinal and orthopedic symptoms which occurred on or after September 10, 2004. The Decision and Order specifically provided that “[c]laimant shall file said claim and serve a copy of it upon the Attorney General within sixty (60) days from the date of filing of this Decision and Order in the Office of the Clerk of the Court. The service and filing of the claim shall be pursuant to the strict requirements of the Court of Claims Act” (id. at p 8).

The Decision and Order was filed with the Clerk of the Court on July 30, 2008 and claimant therefore had until September 29, 2008 in which to file and serve this claim.[1] This claim filed on October 1, 2008 is therefore untimely. Further, a copy of the claim was not received in the Office of the Attorney General until October 10, 2008, and service is thus also untimely (Court of Claims Act § 11 [a] [i]).[2] By failing to comply with the terms set forth in the Court’s prior Decision and Order, claimant loses the benefit of that Decision and Order (see e.g. Lyons v Butler, 134 AD2d 576 [1987]).[3]

Accordingly, defendant’s motion is granted and Claim No. 115904 is dismissed.


February 25, 2009
Binghamton, New York

HON. CATHERINE C. SCHAEWE
Judge of the Court of Claims


The following papers were read on defendant’s motion:

1) Notice of Motion filed on November 12, 2008; Affirmation of James E. Shoemaker, AAG, dated November 7, 2008, and attached Exhibits A through D.


Filed papers: Claim filed on October 1, 2008.


[1]. Because the 60th day after July 30, 2008 was a Sunday, claimant was given until Monday, September 29, 2008 to file and serve the claim (General Construction Law § 25-a [1]).
[2]. The Attorney General’s Office received a claim on October 1, 2008. However, that claim was rejected and returned to claimant because the verification was not notarized (see Affirmation of Assistant Attorney General [AAG] James E. Shoemaker dated November 7, 2008, in Support of Motion to Dismiss, ¶ 5).
[3]. Although claimant might have requested an extension of time in which to file and serve the claim pursuant to CPLR 2004 (see e.g. Richie v New York State Thruway Auth., Ct Cl, July 17, 2007, Ferreira, J., Claim No. 112704, Motion Nos. M-72493, M-72454 [UID # 2007-039-027]), he apparently decided not to do so, as he has neither responded to this motion nor has he cross-moved for such relief.