Claimant's application for a default judgment was denied.
|Claimant short name:||PRICE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||NICHOLAS V. MIDEY JR.|
|Claimant's attorney:||WALTER PRICE, Pro Se|
|Defendant's attorney:||HON. ANDREW M. CUOMO
BY: G. Lawrence Dillon, Esq.,
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 15, 2010|
|See also (multicaptioned case)|
Claimant has brought this motion seeking a default judgment against the State.
The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affidavit in Support 1,2
Defendant's Response, with Exhibits 3
Filed Papers: Claim, Verified Answer, Reply.
In his claim, claimant seeks damages based upon allegations of medical malpractice and/or negligence which occurred on or about March 19, 2009 when claimant was incarcerated at Mid-State Correctional Facility.
In this motion, filed March 5, 2010, claimant contends that he served a Verified Claim upon the defendant on September 8, 2009, and defendant has failed to serve an Answer or move with respect to the claim.
In response, defendant's attorney acknowledges that a Notice of Intention to File a Claim was served, by regular mail, on the Office of the Attorney General on June 8, 2009. Defendant's attorney also acknowledges that the claim was then served upon the Albany Office of the Attorney General, by regular mail, on or about March 5, 2010. Defendant's attorney further acknowledges that the Office of the Attorney General had received notification on September 8, 2009 from the Court of Claims that claimant had filed his claim, but that the claim was not served until March 5, 2010, as indicated above. Defendant's attorney states that following service of the claim on or about March 5, 2010, its Verified Answer was served upon the claimant on or about March 19, 2010. In support of this position, defendant's attorney has attached a copy of the Claim (Exhibit D to Item 3), as well as a copy of the envelope that accompanied the Claim (Exhibit E to Item 3).
The Court notes that claimant failed to file any Affidavit of Service with his Claim indicating that the defendant had been served on September 8, 2009 (as he contends), nor has he submitted any Affidavit of Service or any documentary proof with these motion papers to indicate that the defendant had been served at that time.
Therefore, based upon the documentary evidence which has been filed with the Clerk of the Court of Claims (or lack thereof), together with that which has been submitted with this motion, the Court concludes that the claim, although filed with the Clerk of the Court of Claims on August 28, 2009, was not served upon the defendant until March 5, 2010. The Verified Answer served by the defendant on or about March 19, 2010, was therefore timely served upon claimant in accordance with § 206.7(a) of the Uniform Rules for the Court of Claims.
Accordingly, it is
ORDERED, that Motion No. M-77937 is hereby DENIED.
September 15, 2010
Syracuse, New York
NICHOLAS V. MIDEY JR.
Judge of the Court of Claims