Defendant's motion to dismiss amended claim served more than forty days after service of answer is granted where amended claim was served without leave of court or by stipulation.
|Claimant(s):||JOHNNY B. BROWN|
|Claimant short name:||BROWN|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||JOHNNY B. BROWN
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
New York State Attorney General
By: Thomas R. Monjeau, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||July 20, 2018|
|See also (multicaptioned case)|
Defendant moves to dismiss the amended claim served by claimant more than forty days after service of defendant's answer and without leave of court. Claimant opposes the defendant's motion.
A party may amend a pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it (CPLR 3025 [a]). The Uniform Rules for the Court of Claims provide that pleadings may be amended in the manner provided by CPLR 3025, except that a party may amend a pleading once without leave of court within 40 days after its service, or at any time before the period for responding to it expires, or within 40 days after service of a pleading responding to it (Uniform Rules for the Court of Claims 206.7 [b]).
Claimant filed and served his claim on April 24, 2017 and defendant served its answer on May 23, 2017. Claimant had 40 days after May 23, 2017 (specifically July 2, 2017) in which to serve an amended claim as of right but did not do so until April 2, 2018, approximately 9 months later.
Defendant alleges that the amended claim "added six (6) additional alleged causes of action" and "increased [the] demand for damages from $11,018.00 to $90,000.00."
Neither party has addressed whether the amended claim was filed with the Clerk of the Court of Claims.
Claimant had no statutory or uniform rule authority to serve an amended claim upon defendant without leave of court. As the amended claim does not comply with CPLR 3025 (a) and Uniform Rules for the Court of Claims 206.7 (b), the amended claim is a nullity and defendant's motion to dismiss the amended claim is granted (see Nikolic v Federation Empl. & Guidance Serv., Inc., 18 AD3d 522, 524 [2d Dept 2005]: "plaintiff's service of the amended summons and complaint was a nullity since he served these papers without leave of court or a stipulation of the parties in accordance with CPLR 3025(b)").
The amended claim is dismissed.
July 20, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion, filed April 27, 2018;
2. Affirmation of Thomas R. Monjeau, dated April 27, 2018, and attached exhibits;
3. Affirmation of Johnny B. Brown, dated May 9, 2018, and attached exhibits.