Movant's application to file a Claim late pursuant to CCA § 10(6) denied as Movant failed to serve Motion on Defendant.
|Claimant short name:||PAULINO|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||Leonelly Paulino, Pro Se|
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Glenn C. King, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||October 19, 2021|
|See also (multicaptioned case)|
For the reasons set forth below, pro se Movant's application to serve and file a late Claim pursuant to Court of Claims Act § 10(6) is denied without prejudice.
Pursuant to CPLR 2214(b), motion papers have to be served on one's adversary. Defense counsel avers that the State received notice from the Court of Claims that the instant motion was calendared before the undersigned, and submits the Affidavit of Debra L. Mantell, a Legal Assistant II in the Albany Office of the Attorney General, stating that the motion papers were not served upon Defendant (Affirmation in Opposition of Glenn C. King, Esq., Assistant Attorney General, ¶¶ 3, 4, & Ex. A attached thereto [Affidavit of Debra L. Mantell (hereinafter "Mantell Affidavit"), ¶¶ 6, 8, 9]). Ms. Mantell does state that, on September 1, 2021, the Office of the Attorney General was served with a Notice of Intention to File a Claim by Mr. Paulino by regular mail (Mantell Affidavit, ¶¶ 5, 9[a]).
Attached to the motion papers Movant filed with the Court is an Affidavit of Service that was sworn to on August 7, 2021, that avers that Movant served a Notice of intention upon the Attorney General on August 3, 2021. The Affidavit of Service does not mention that the motion papers were also served upon Defendant. The Notice of Intention asserts that Defendant was negligent in allowing Mr. Paulino to contract the Covid-19 while housed at Bare Hill Correctional Facility on December 23, 2020. Movant has not submitted any Reply to Defendant's submission in opposition to the Motion.
Having failed to respond to Defendant's assertions of non-service in its submission, Movant has effectively conceded that Defendant was not served. Therefore, Defendant has established that it was not served with a copy of the motion papers, requiring that the motion be denied (Rivera v State of New York, UID No. 2019-040-108 [Ct Cl, McCarthy, J., Nov. 8, 2019]; Dukes v State of New York, UID No. 2017-038-513 [Ct Cl, DeBow, J., Feb. 10, 2017]; see Gregory v State of New York, UID No. 2019-054-030 [Ct Cl, Rivera, J., May 22, 2019]).
Therefore, the Motion for Permission to File a Late Claim is denied without prejudice.
October 19, 2021
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court on Movant's Motion to file a late claim pursuant to Section 10(6) of the Court of Claims Act:
Motion for Permission to File a Late Claim
& Attachments 1
Affirmation in Opposition & Exhibit Attached 2