Claimants' motion for an extension of time, nunc pro tunc, within which to file and serve a late claim is granted. The Court's earlier decision and order granting permission to file a late claim provided that claimant was to file and serve the proposed claim within 60 days, however, claimant filed and served the claim nine days late. Applying CPLR 2004, the Court finds a nine day delay short and there was no showing of prejudice to the defendants.
|Claimant(s):||TERRY A. BOWLER and THOMAS BOWLER as Co-Administrators of the Estate of TED WILLIAM BOWLER|
|Claimant short name:||BOWLER|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK, WESTERN NEW YORK DEVELOPMENTAL DISABILITY SERVICES OFFICE, ALDEN IRA GROUP HOME|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||BROWN CHIARI, LLP
BY: Nicole T.C. Marques, Esq.
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: No Appearance
|Third-party defendant's attorney:|
|Signature date:||November 2, 2017|
|See also (multicaptioned case)|
Patricia Daughtry as temporary administrator of the estate of Ted William Bowler received permission from this Court to late file a claim for personal injuries arising out of an incident which occurred during the overnight shift of December 12, 2014 through December 13, 2014 (see Claimants Exhibit A). Claimants Terry A. Bowler and Thomas Bowler as co-administrators of the estate of Ted William Bowler now move for an extension of time, nunc pro tunc, within which to file and serve the claim. Defendants failed to appear or otherwise oppose the motion.
Procedurally, Patricia Daughtry was appointed temporary administrator of the estate of Ted William Bowler on October 9, 2015. Claimant Patricia Daughtry as temporary administrator of the estate filed claim no. 127255 for personal injuries and for the wrongful death of Ted William Bowler on December 22, 2015. In its answer filed on January 14, 2016, defendant raised as affirmative defenses that the claim was jurisdictionally defective as it had not been filed and served within ninety (90) days of accrual as required by Court of Claims Act §§ 10 (3) and (11).
On December 22, 2015, at the same time claim no. 127255 was filed, claimant Patricia Daughtry as temporary administrator of the estate of Ted William Bowler filed a motion for permission to late file a claim for personal injuries (pain and suffering). By this Court's Decision and Order filed on May 25, 2016, claimant's motion to late file was granted. The Decision and Order specifically provided that the claimant was to file and serve the proposed claim within sixty (60) days of the filing of the Decision and Order, or by July 25, 2016.(1)
On March 29, 2016, after the motion for late claim relief had been filed but before it had been decided, Terry A. Bowler and Thomas Bowler were appointed co-administrators of the estate of Ted William Bowler. On August 3, 2016, approximately nine days after expiration of the time granted by the Court's prior Decision and Order, Terry A. Bowler and Thomas Bowler as co-administrators filed claim no. 128308 for personal injuries. Also on August 3, 2016, claimants served the claim by certified mail, return receipt requested (see affidavit of service annexed to claimants' motion papers as part of Exhibit B).(2) According to the Court's docket sheet, defendants' answer to this claim was filed on August 15, 2016, indicating that the service of the claim had been completed shortly after the claim was filed. Then by Stipulations filed December 1, 2016, Terry A. Bowler and Thomas Bowler were substituted in place of Patricia Daughtry as co-administrators of the estate of Ted William Bowler with respect to claim no. 127255 and claim nos. 127255 and 128308 were joined for trial and discovery under claim no. 127255.
On January 20, 2017, claimants Terry A. Bowler and Thomas Bowler as co-administrators filed the present motion requesting that the Court extend the time within which to file and serve their claim for personal injuries granted by the Court's May 25, 2016 Decision and Order. In their motion papers, claimants admit that claim no. 128308 was untimely filed and served due to the law office failure to properly calendar the filing and service deadline imposed by the Court.
CPLR 2004 provides that "[e]xcept where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing an act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed." In determining such a motion the Court may consider the length of the delay, whether the opposing party was prejudiced by the delay and the reason for the delay (Tewari v Tsoutsouras, 75 NY2d 1 ).
Here, the nine day length of the delay in filing the claim is short and there has been no showing of prejudice to the defendants. In fact, defendants have not opposed this motion and in their answer to claim no. 128308 simply allege that the claim was untimely as it was not served within ninety (90) days of accrual. The defendants did not allege in their answer that the claim had not been filed and served within the time limitation set in a Court order granting late claim relief. The law favors resolution of claims on the merits and law office failure is an excuse which may be considered on a motion for a CPLR 2004 extension (see Gray v The State of New York, UID No. 2009-044-526 [Ct Cl, Schaewe, J., May 12, 2009]; LaPlant v The State of New York, UID No. 2002-007-153 [Ct Cl, Bell, J., March 8, 2002]).
Based on the foregoing, claimants motion no. M-90654 is granted and the time within which to file and serve a late claim is hereby extended and the claim filed on August 3, 2016 and served shortly thereafter shall be deemed timely, nunc pro tunc.
November 2, 2017
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and filed by the Court:
1. Notice of motion and affidavit of Nicole T.C. Marques, Esq. sworn to June 15, 2017, with annexed Exhibits A-D.
1. The sixtieth day after May 25, 2016 was a Sunday. Accordingly, claimant had until Monday, July 25, 2016 to file and serve the claim (General Construction Law § 25-a ).
2. Pursuant to Court of Claims Act § 11 (a) (ii), service by certified mail, return receipt requested, shall not b e complete until the claim is received by the defendants.