Claimant's motion for additional time to file amended claim asserting additional causes of action is granted. The State reserves its right to raise legal objections and affirmative defenses to the amended claim and to make any related motions.
|Claimant short name:||MATTER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||LAW OFFICES OF LOUIS ROSADO
BY: Louis Rosado, Esq.
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
BY: Darren Longo, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||November 16, 2018|
|See also (multicaptioned case)|
Claim no.129115 is an action for wrongful confinement and false imprisonment arising out of the defendant's alleged violation of the terms of claimant's parole release by categorizing him as a "dangerous sex offender" who required secure confinement. Claim no. 129115 was filed on January 6, 2017. In December of 2017, claimant brought a motion (M- 91503) for permission to amend the claim to assert additional causes of action. By this Court's decision and order (Matter v State of New York [Ct Cl, Sampson, J., March 12, 2018]), claimant was granted permission to file and serve his amended claim and provided forty-five (45) days after the filing of the decision and order within which to file and serve his amended claim. As this decision and order was filed on April 9, 2018, claimant had until May 24, 2018 to file and serve the amended claim. He failed to do so. As a result, claimant now moves for additional time to file and serve the amended claim.
The issue in the present motion is not compliance with the statutory filing and service requirements of the Court of Claims Act, but rather the service and filing of an amended claim beyond the time set for such action by the Court in a prior decision and order (Canales v State of New York, UID No. 2015-015-083 [Ct Cl, Collins, J., Oct. 30, 2015]). CPLR 2004 authorizes a Court to extend the time this is fixed in an order for doing an action upon such terms as may be just and upon good cause shown. Even where, as here, the failure to comply with a Court-ordered deadline is based solely on law office failure, an extension may be granted where there was no purposeful delay and the opposing party will not be prejudiced (Brusco v Davis-Klages, 302 AD2d 674 [3d Dept 2003]).
The defendant does not argue that it will be prejudiced if claimant is permitted additional time to serve and file his amended claim. In a letter dated November 13, 2018, Assistant Attorney General Darren Longo consents to the service and filing of the amended claim while reserving the defendant's right to raise any and all legal objections and affirmative defenses to the amended claim and to make any motions based upon such objections or affirmative defenses.
Accordingly, it is hereby
ORDERED, that claimant's motion no. M-93048 insofar as it requests leave to file and serve the amended claim is granted and the defendant may raise any legal objections and affirmative defenses to the amended claim, including the right to make any motions based upon such objections or affirmative defenses, and it is further
ORDERED, that the claimant shall file and serve the amended claim in accordance with the provisions of the Court of Claims Act and Part 206 of the Uniform Rules for the Court of Claims within forty-five (45) days of the filing of this decision and order.
November 16, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court:
1. Notice of motion and affirmation of Louis Rosado, Esq. dated October 30, 2018, with annexed Exhibits A-B; and
2. Letter of Assistant Attorney General Darren Longo, Esq. dated November 13, 2018.