Defendant's motion to dismiss claim held in abeyance. Subsequent to the motion, claimant filed an amended claim, which supersedes the original claim. Defendant granted leave to respond to the amended claim, and claimant granted leave to reply thereto.
|Claimant short name:||DRAYTON|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||OMNIPOTENT DRAYTON, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Heather R. Rubinstein, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||April 5, 2019|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed and served this claim on October 31, 2018, in which he alleges misfeasance by correction officers at Green Haven Correctional Facility in August and September 2018 (see Claim number 132212, filed 10/31/18; Rubinstein Affirmation, Exhibit A [Verified Claim, rec'd 10/31/18]). In lieu of answering the claim, defendant moved to dismiss the claim for failure to state a cause of action on the grounds that certain causes of action do not lie as a matter of law and for certain pleading defects. On January 8, 2019, claimant filed a "First Amended and Verified Claim" that includes additional paragraphs that appear to be responsive to defendant's motion (see First Amended and Verified Claim, ¶¶ 16A, 16B). The amended claim, which was supported by an affidavit of service upon the Assistant Attorney General who made defendant's motion to dismiss, was accepted by the Clerk of the Court of Claims for filing "subject to whatever legal objections may apply thereto" (Fazzone Correspondence, 1/11/19). To date, defendant has not served an answer to the amended claim, nor has it otherwise addressed the filing of the amended claim.
The filing of an amended pleading supersedes the initial pleading and abates a motion to dismiss that is addressed to the initial superseded pleading (see Novik v Davidson, 262 AD 1058 [3d Dept 1941], amended by Novik v Davidson, 266 AD 813 [3d Dept 1943]; see also National Bondholders Corp. v Joyce, 276 NY 92, 95 ). Defendant's motion will be held in abeyance, and defendant will be granted permission to file an answer or otherwise respond to the filed amended claim.
Accordingly, it is
ORDERED, that defendant's motion number M-93246 is HELD IN ABEYANCE in accordance with this Decision and Order, and it is further
ORDERED, that defendant is granted leave to file and serve an amended answer or make an application addressed to the amended claim within twenty (20) days of the date of filing of this Decision and Order, and it is further
ORDERED, that claimant may file and serve a response, if any, to a filing by defendant addressed to the amended claim within twenty one (21) days of the date of service thereof, and it is further
ORDERED, that in the event of the filing and service of a response by claimant, defendant may reply thereto within seven (7) days of the date of service thereof.
April 5, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Verified Claim number 132212, sworn to October 25, 2018;
(2) Notice of Motion, dated December 3, 2018;
(3) Affirmation of Heather R. Rubinstein, AAG, dated December 3, 2018, with Exhibit A;
(4) Affidavit of Service of Francine Broughton, sworn to November 4, 2018 [sic];
(5) First Amended Verified Claim number 132212, sworn to January 3, 2019;
(6) Affidavit of Service of First Amended and Verified Claim, sworn to January 4, 2019;
(7) Correspondence of Eileen F. Fazzone, Chief Clerk, dated January 11, 2019.