New York State Court of Claims

New York State Court of Claims
BROWN v. THE STATE OF NEW YORK, # 2018-041-051, Claim No. 129615, Motion No. M-92194

Synopsis

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.

Case information

UID: 2018-041-051
Claimant(s): JOHNNY B. BROWN
Claimant short name: BROWN
Footnote (claimant name) :
Defendant(s): THE STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 129615
Motion number(s): M-92194
Cross-motion number(s):
Judge: FRANK P. MILANO
Claimant's attorney: JOHNNY B. BROWN
Pro Se
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
City: Albany
Comments:
Official citation:
Appellate results:
See also (multicaptioned case)

Decision

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

Papers Considered:

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.