Pro se claimant's motion seeking permission to late file a reply to the State's answer is denied as the answer did not contain a counterclaim and CPLR 3011 does not permit a reply to an answer.
|Claimant short name:||GRATE|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||DARRYL GRATE, Pro Se|
|Defendant's attorney:||HON. LETITIA JAMES
New York State Attorney General
BY: Tamara B. Christie, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 6, 2021|
|See also (multicaptioned case)|
Pro se claimant Darryl Grate alleges in claim no. 134798 that he was denied reasonable accommodation during his parole hearing in March 2019. The claim was filed on May 26, 2020 and the answer was filed on July 14, 2020. Claimant now moves by motion no. M-95999 for permission to late file a reply to defendant's answer pursuant to Court of Claims Act § 10 (6).
Court of Claims Act § 10 (6) provides a procedure by which a claimant can seek permission from the Court to file and serve a late claim. It does not, however, provide a procedure for seeking permission to late file a reply to an answer.
In his supporting affidavit, claimant alleges that he is seeking time to respond to the "answer motion". Presumably, claimant is referring to the wherefore clause in the defendant's answer in which the defendant "demands that this claim be dismissed. . . ." Contrary to claimant's presumed assumption, defendant has not made a motion to dismiss the claim. Rather, defendant has merely asserted in its wherefore clause in the answer standard language that the claim should be dismissed (see Kelley v The State of New York, UID No. 2003-019-530 [Ct Cl, Lebous, J., March 25, 2003]).
CPLR § 3011 provides that there shall be a complaint and an answer. The answer may contain a counterclaim in which event there shall be a reply to a counterclaim denominated as such. Here, defendant's answer contains denials of the allegations in the claim and asserts ten affirmative defenses. It does not contain a counterclaim requiring a responsive pleading from claimant. CPLR § 3011 does not permit a reply to an answer (Smiley v The State of New York, UID No. 2014-010-085 [ Ct Cl, Ruderman, J., Dec. 17, 2014]).
Where, as here, the answer does not contain a counterclaim, a reply "is not only unnecessary, but is, in fact, inappropriate" (Scott v The State of New York, UID No. 2003-031-017 [Ct Cl, Minarik, J., April 9, 2003]; see also H.S. v The State of New York, UID No. 2019-038-586 [Ct Cl, DeBow, J., Sept. 13, 2019]).
Accordingly, claimant's motion no. M-95999 for permission to late file and serve a reply to defendant's answer is denied.
January 6, 2021
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 supporting affidavit of Darryl Grate sworn to September 16, 2020; and
2. Opposing affirmation of Assistant Attorney General Tamara B. Christie dated November 10, 2020.