Claimant's motion to compel acceptance of its answer was granted to the extent that its answer previously served was deemed timely.
|Claimant short name:||BROWNE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANCIS T. COLLINS|
|Claimant's attorney:||Kendall Brown, Pro Se|
|Defendant's attorney:||Honorable Andrew M. Cuomo, Attorney General
By: Michael C. Rizzo, Esquire
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||March 19, 2010|
|See also (multicaptioned case)|
Defendant moves for an Order pursuant to CPLR 3012 (d) compelling the claimant to accept its answer.
The claim filed on August 25, 2008 seeks damages for injuries sustained as the result of the defendant's failure to provide reasonable and prompt medical care during the period February 20, 2008 through July 17, 2008. Defendant moved to dismiss the claim pursuant to CPLR 3211 (a) (2) and (8) on the ground that the claimant failed to serve the claim as required by Court of Claims Act §§ 10 (3) and 11 (a). The motion was served on November 10, 2008 and the claim was served on November 20, 2008 while the motion was pending. By Decision and Order filed in the Office of the Chief Clerk on March 12, 2009, the motion to dismiss the claim was denied. Subsequent to the filing of the note of issue on November 30, 2009, defense counsel apparently realized that no answer to the claim had been served and claimant conveyed his refusal to accept defendant's answer in a telephone conference with the Court. Defendant served an answer to the claim on December 1, 2009 and now moves to compel acceptance of its answer. Defendant argues that service of an answer was timely in that pursuant to CPLR 3211 (f) the time to serve a responsive pleading was stayed until 10 days after service of notice of entry of the Order denying its pre-answer dismissal motion. In the alternative, defendant argues that it has a reasonable excuse for the delay and a meritorious defense.
CPLR 3211 (f) provides the following:
"Extension of time to plead. Service of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until ten days after service of notice of entry of the order."
Defense counsel avers that the defendant has not been served with notice of entry of the Order denying its motion pursuant to CPLR 3211 (a) and therefore the service of its answer on December 1, 2009 was timely. The Court agrees. While the Order with the entry date stamped thereon was sent to the claimant by the Chief Clerk of the Court of Claims, the cover letter accompanying the Order advised the claimant that "[y]ou are required to serve a copy of the above document upon all appropriate parties" (defendant's Exhibit D). As claimant does not dispute the defendant's assertion that it has not been served with the Order with notice of entry, its answer was timely served.
Accordingly, defendant's motion is granted to the extent that its answer to the claim served on December 1, 2009 is deemed timely.
March 19, 2010
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers: