Opinion
# 2013-045-017 Claim No. 121817 Motion No. M-82904
05-21-2013
CANDICE COLEMAN WOODS v. THE STATE OF NEW YORK
Synopsis
Extension of time to comply with Court's prior Decision and Order granting late claim relief.
Case information
UID: 2013-045-017 Claimant(s): CANDICE COLEMAN WOODS Claimant short name: COLEMAN-WOODS Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote (defendant name) : Third-party claimant(s): Third-party defendant(s): Claim number(s): 121817 Motion number(s): M-82904 Cross-motion number(s): Judge: Gina M. Lopez-Summa Law Office of Jeffrey S. Schwartz, LLC Claimant's attorney: By: Jeffrey S. Schwartz, Esq. Hon. Eric T. Schneiderman, Attorney General Defendant's attorney: By: Theresa N. Wilson, Assistant Attorney General Third-party defendant's attorney: Signature date: May 21, 2013 City: Hauppauge Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
The following papers were read and considered by the Court on this motion: Defendant's Notice of Motion, Defendant's Affirmation with Annexed Exhibits A-F, and Claimant's Affirmation in Opposition with Annexed Exhibits A -C.
By Decision and Order filed September 11, 2012, this Court granted claimant's motion to file a late claim in this matter within 60 days of the date the Decision and Order was filed. Claimant filed her claim on October 4, 2012 and served the claim upon defendant on December 7, 2012. Defendant moves the Court, in lieu of an answer, for an order dismissing the claim on the ground that the claim was served untimely pursuant to both the Court of Claims Act and the prior Decision and Order of this Court.
In response claimant is essentially asking the Court for an extension of time to fully comply with the September 11, 2012 Decision and Order. Claimant states that she timely filed the claim with the Court but due to inadvertent law office failure the claim was served on defendant past the time frame set forth in the Court's prior Decision and Order.
CPLR 2004 provides "[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application is made before or after the expiration of the time fixed." The Court is to consider factors such as length of the delay, the reason given for the delay, whether the opposing party has been prejudiced by the delay and in the case of pleading defaults whether or not there is a affidavit of merit (Tewari v Tsoutsouras, 75 NY2d 1 [1989]).
Claimant partially complied with the September 11, 2012 Decision and Order by filing the claim within 60 days of the date the Decision and Order was filed. Additionally, defendant received a copy of the proposed claim as part of claimant's late claim motion. Thus, it cannot be said nor is defendant arguing that claimant's untimely service of the claim resulted in substantial prejudice to the defendant (see Matter of Yackle v State of New York, 21 AD3d 1283 [4th Dept 2005]; Griffin v John Jay College, 266 AD2d 16 [1st Dept 1999]). Further the Court has already determined the issue of merit in this case as part of the previous late claim application.
Finally, pursuant to Court of Claims Act § 10 (6), the Court retains jurisdiction over the claim as the applicable three-year statute of limitations for the underlying claim has not yet expired (Crum & Foster Ins. Co. v State of New York, 25 AD3d 643 [2d Dept 2006]).
Therefore, for the foregoing reasons, defendant's motion to dismiss is denied. Additionally, the language in the final paragraph of this Court's September 11, 2012 Decision and Order in this matter which read, "Accordingly, within sixty (60) days of the date this decision and order is filed, claimant shall file and serve the proposed claim , together with a payment of the appropriate filing fee, pursuant to Court of Claims Act § § 11 and 11-a" is hereby amended to read, "Accordingly, within ninety (90) days of the date this decision and order is filed, claimant shall file and serve the proposed claim , together with a payment of the appropriate filing fee, pursuant to Court of Claims Act §§ 11 and 11-a."
Claimant shall amend the title of the proposed claim from "Notice of Claim" to "Claim" in order to more properly reflect the relief granted in this matter.
Claimant shall amend the title of the proposed claim from "Notice of Claim" to "Claim" in order to more properly reflect the relief granted in this matter.
Therefore, the filing of the claim on October 4, 2012 and service of the claim on December 7, 2012 is deemed timely subject to any objections to filing and service other than timeliness. Lastly, defendant has 40 days from the date of the filing of this Decision and Order to answer the claim.
May 21, 2013
Hauppauge, New York
Gina M. Lopez-Summa
Judge of the Court of Claims