Defendant's motion to dismiss denied as unnecessary. Claimant's submission, styled as a supplemental claim, merely contained argument in support of the claim.
|Claimant(s):||MR. BENITO GUMBS|
|Claimant short name:||GUMBS|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||BENITO GUMBS, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Stephen Barry, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||September 18, 2019|
|See also (multicaptioned case)|
At the trial of this claim on July 25, 2019, claimant sought to introduce a "Verified Reply and Affirmation and Supplemental Claim," an unsworn and undated document that makes legal argument, and that is appended with Exhibit A containing photographs and documents. Although the Verified Reply and Affirmation and its exhibit were received in chambers on April 29, 2019, they were not copied to the Office of the Attorney General. The Court transmitted a copy to defendant after trial and directed that any response to the Verified Reply and Affirmation and Supplemental Claim or objections to the receipt into evidence of any of the photographs and documents contained within Exhibit A were to be served no later than August 8, 2019 (see "So Ordered" Correspondence of the Hon. W. Brooks DeBow, dated July 26, 2019).(1) Defendant now makes this motion seeking to dismiss the Supplemental Claim on the grounds that it was not properly served and was untimely. Claimant opposes the motion.
Defendant's motion will be denied. Although the Verified Reply and Affirmation is also styled as a "Supplemental Claim" (see Verified Reply and Affirmation and Supplimental [sic], adj (17c) Supplemental Claim, undated and received Apr. 29, 2019), defendant's counsel misapprehends the purpose of its proffer. The Verified Reply and Affirmation was not offered as a supplement to the claim, but merely as written argument in support of the claim. Thus, defendant's motion is unnecessary, and the Court will consider the Verified Reply and Affirmation solely as argument in support of the claim.
Accordingly, it is
ORDERED, that defendant's motion number M-94371 is hereby DENIED.
September 18, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Notice of Pre-Answer Motion, dated August 8, 2019;
2. Affirmation of Stephen Barry, AAG, dated August 8, 2019, with Exhibits A-B;
3. Affirmation of Beneto O. Gumbs in Support of Motion to Grant Supplemental Claim,
4. Notice of Pre Verified Reply Motion, dated August 26, 2019, with Exhibits A-C;
5. Verified Reply and Affirmation and Supplimental [sic], adj (17c) Supplemental Claim,
undated and received April 29, 2019, with Exhibit A;
6. "So Ordered" Correspondence of the Hon. W. Brooks DeBow, Judge of the Court of Claims,
dated July 26, 2019.
1. Inasmuch as defendant did not object to the receipt into evidence of the photographs and documents contained within Exhibit A by August 8, 2019, they were received into evidence as Claimant's Exhibit 4 by operation of the Court's July 26, 2019 "So Ordered" correspondence.