Court OSC vacated. Claim was served upon Defendant.
|Claimant(s):||TOTALKARE OF AMERICA, INC.|
|Claimant short name:||TOTALKARE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||CHRISTOPHER J. McCARTHY|
|Claimant's attorney:||BARCLAY DAMON LLP
By: Nicholas J. DiCesare, Esq.
|Defendant's attorney:||LETITIA JAMES
Attorney General of the State of New York
By: Michael I. Getz, Esq., AAG
|Third-party defendant's attorney:|
|Signature date:||July 23, 2021|
|See also (multicaptioned case)|
By Order to Show Cause returnable July 14, 2021, the Court noted that Claimant may have failed to comply with the service requirements of § 11 of the Court of Claims Act. The parties were ordered to submit a written statement relating to service of the Claim. The Order to Show Cause also stated that, if the State "wishes to assert that the Claim was not served on the Attorney General, that statement should come from someone with personal knowledge of the contents of files and records of the Department of Law."
The Claim was filed in the office of the Clerk of the Court on November 2, 2020. The State had not filed a verified answer to the Claim as of the date the Order to Show Cause was signed.
In response to the Order to Show Cause, Claimant's counsel submitted an affirmation and an affidavit of service indicating the Claim was mailed to the office of the Attorney General in Albany, New York, on December 1, 2020 by certified mail, return receipt requested (Affirmation of Nicholas J. DiCesare, Esq., ¶ 3, see Ex. A attached). Counsel further asserts that the return receipt confirms that the Claim was received by the office of the Attorney General on December 7, 2020 (id., ¶ 6, see Ex. C attached). Mr. DiCesare further states that the parties have entered into two stipulations to extend the State's time to Answer or otherwise respond to this Claim (id., ¶¶ 8, 9).
The Court notes that the parties have now entered into a third stipulation to extend the State's time to Answer or otherwise respond to this Claim, which was filed in the office of the Clerk of the Court on May 20, 2021.
As Claimant has established that the Claim was served upon Defendant and Defendant has acknowledged that the Claim has been served upon it by entering into multiple stipulations extending its time to Answer or otherwise respond to the Claim, the Order to Show Cause is vacated.
July 23, 2021
Albany, New York
CHRISTOPHER J. McCARTHY
Judge of the Court of Claims
The following papers were read and considered by the Court:
Order to Show Cause 1
Affirmation from Claimant's Counsel
& Exhibits attached 2
Filed Papers: Claim, Stipulations