New York State Court of Claims

New York State Court of Claims

GRAY v. THE STATE OF NEW YORK, #2009-044-526, Claim No. 116410, Motion Nos. M-76248, CM-76298


Synopsis


Claimant’s motion for an extension of time to file and serve a late claim granted. Minimal delay in filing and serving claim was caused by law office failure, and resulted in no prejudice to defendant.

Case Information

UID:
2009-044-526
Claimant(s):
JAMES and FERN GRAY
Claimant short name:
GRAY
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116410
Motion number(s):
M-76248
Cross-motion number(s):
CM-76298
Judge:
CATHERINE C. SCHAEWE
Claimant’s attorney:
BOTTAR LEONE, PLLCBY: Michael A. Bottar, Esq., of counsel
Defendant’s attorney:
HON. ANDREW M. CUOMO, ATTORNEY GENERALBY: Joseph F. Romani, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 12, 2009
City:
Binghamton
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

After receiving permission from this Court to late file (Gray v State of New York, Ct Cl, Dec. 3, 2008, Schaewe, J., Claim No. None, Motion No. M-74588 [UID # 2008-044-594]), claimants filed this claim on February 11, 2009 seeking recovery for personal injuries allegedly caused by the negligence of defendant State of New York (defendant) in its design, construction and maintenance of Interstate Highway 88. Claimants now move for an extension of time within which to file and serve the claim.[1] Defendant opposes the motion and cross-moves to dismiss the claim as untimely. Claimants reply and oppose the cross motion.

Claimants argue that due to law office failure, counsel mistakenly believed that he had 60 days in which to file and serve a claim, rather than the 30 days authorized by the Court. Claimants further contend that the delay in making this motion is brief and because their prior motion papers included a proposed claim, there is no prejudice to defendant.

Defendant asserts that this claim was both untimely filed and served, and it is therefore jurisdictionally defective. Defendant argues that claimants completely disregarded the Court’s previous Decision and Order, and because there has been a “substantial” delay since expiration of the 30-day period in which to file and serve a late claim, this motion should be denied.

The Court previously granted claimants’ motion for permission to file and serve a late claim, specifically providing that “[c]laimants shall file said claim and serve a copy of it upon the Attorney General within thirty (30) 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 6). The Decision and Order was filed with the Clerk of the Court on December 12, 2008, and claimant therefore had until January 12, 2009 to file and serve a claim.[2] Although this claim both filed and served on February 11, 2009 is presumptively untimely, claimants have requested that the Court extend their deadline to comply with the prior Decision and Order.[3]

CPLR 2004 provides that “[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” When determining whether to grant an extension of time to comply with a prior order, the Court must consider the length of the delay, the reason or excuse for the delay, and whether there is any prejudice to the opposing party (Tewari v Tsoutsouras, 75 NY2d 1, 12 [1989]).

Claimants have candidly admitted that their failure to comply with the Decision and Order in a timely manner is attributable to law office failure, an excuse that may be considered on this motion (id.; LaPlant v State of New York, Ct Cl, Mar. 8, 2001, Bell, J., Claim No. None, Motion No. M-64682 [UID # 2001-007-153]). There is no evidence that claimants’ 30-day delay in filing and serving the claim was wilful or purposeful (Brusco v Davis-Klages, 302 AD2d 674 [2003]; Magie v Fremon, 162 AD2d 857 [1990]). Further, defendant does not argue that there would be any prejudice to the State if an extension is granted, nor has the Court discerned any such prejudice.

Claimants’ motion is therefore granted and the time in which to file and serve a claim in this matter is hereby extended, and the claim filed and served on February 11, 2009 shall be deemed timely. Accordingly, defendant has 40 days from the date of the filing of this Decision and Order in which to answer the claim. Defendant’s cross motion to dismiss is denied.



May 12, 2009
Binghamton, New York

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


The following papers were read on claimants’ motion and defendant’s cross motion:

1) Notice of Motion filed on February 13, 2009; Affirmation of Michael A. Bottar, Esq., dated February 11, 2009, and attached Exhibits A through I.

2) Notice of Cross Motion filed on February 20, 2009; Affirmation of Joseph F. Romani, Assistant Attorney General, dated February 18, 2009, and attached Exhibits A and B.

3) Reply Affirmation of Michael A. Bottar, Esq., dated February 20, 2009, and attached Exhibits A through C.


Filed papers: Claim filed on February 11, 2009.




[1]. In light of the determination infra, the Court need not reach the merits of claimants’ alternative argument that the claim attached as an exhibit to the motion papers filed in their previous motion for permission to file and serve a late claim (Motion No. M-74588) be deemed the operative claim.
[2]. Because the 30th day after December 12, 2008 was a Sunday, claimant was given until Monday, January 12, 2009 to file and serve the claim (General Construction Law § 25-a [1]).
[3]. The Court notes that even if claimants had been allowed 60 days in which to file and serve a claim, this claim would nevertheless have been untimely, as the 60th day after December 12, 2008 was Tuesday, February 10, 2009.