New York State Court of Claims

New York State Court of Claims

GIBSON v. THE STATE OF NEW YORK, #2000-017-611, Claim No. 101212, Motion No. M-61208


Court grants claimant's motion for a default judgment against the State in part, based on defendant's failure to answer the Claim.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Rufus Gibson, pro se
Defendant's attorney:
Eliot Spitzer, Attorney Generalby: Mary Kavaney, AAG
Third-party defendant's attorney:

Signature date:
December 20, 2000
White Plains

Official citation:

Appellate results:

See also (multicaptioned case)


In connection with claimant's application for a default judgment, the court considered the following papers:

1. Notice of Motion, Affidavit and Exhibits

2. Affirmation in Opposition [first] filed March 22, 2000

3. Claimant's Reply to Affirmation in Opposition

4. Affirmation in Opposition [second] filed May 3, 2000

5. Claimant's Reply to Second Affirmation in Opposition

6. Letter from Assistant Attorney General dated July 21, 2000

7. Affirmation in Opposition [third] filed August 3, 2000

Claimant alleges that he was assaulted by another inmate at the Fishkill Correctional Facility on October 13, 1998 and that such was the result of negligence on the part of the defendant; specifically, that he was being held in protective custody because of a prior altercation with another inmate but the other inmate was allowed to assault him despite defendant's knowledge of the need for protection. Claimant served a notice of intention to file a claim on November 11, 1998. The instant claim was filed on October 7, 1999 and was served, by regular mail, on some unspecified date in October, 1999. Claimant, apparently realizing the defect in his initial attempt to serve the claim, effected service by certified mail, return receipt requested, on December 21, 1999. This mailing was addressed to Attorney General Eliot Spitzer at his office at 120 Broadway in Manhattan.

When defendant failed to answer the claim, claimant submitted the instant motion seeking a default judgment. In its first affirmation in opposition, dated March 20, 2000, defendant contended that it had never been served with the claim.

In its second affirmation in opposition, dated May 2, 2000, defendant indicated that "further checking" revealed that Assistant Attorney General Nicola Grey, who is assigned to the litigation bureau (which handles federal litigation), not the claims bureau (which handles Court of Claims litigation), had indeed received a copy of the claim on December 21, 1999, but that the document had been mistakenly misfiled with papers concerning a related federal court action filed by the claimant. The envelope in which the claim was served indicates that certified mail was utilized, and although it cannot be determined from the envelope whether a return receipt was requested, defendant does not claim otherwise. Defendant does characterize this service as "contrary to the service provisions of the CPLR" because it was purportedly addressed directly to an Assistant Attorney General. This contention is totally without merit, both in fact and in law. The envelope in which the claim was served is addressed: "Hon. Elliot Spitzer; Attorney General; Law Department; 120 Broadway; New York, New York 12071" (i.e., it was not addressed to a specific assistant attorney general[1]). Counsel refers to an unsuccessful search of claims served at the "designated Attorney Generals [sic] Office address: Justice Building Box 7344 Capital [sic] Station Albany New York 12224," a perplexing assertion since that is the post office box of the Court of Claims, not the Attorney General.

It appears as if counsel was attempting to argue (notwithstanding the confusion as to the respective addresses of the court and the Attorney General's office) that mail service of a claim may only be effected by mailing to the Attorney General's office in Albany and not to a regional office, a contention that has absolutely no basis in any statutory or case law and which is belied by everyday practice in this court. The Court of Claims Act (§11[a]) merely requires service "personally or by certified mail, return receipt requested" upon the Attorney General. Certainly, a mailing to the Attorney General's office at 120 Broadway fulfills this mandate just as well as a mailing to the Attorney General's office in the Capitol Building in Albany does.

Counsel then states: "[c]learly this document, sent directly to Ms. Grey, was not personally served nor received registered mail," and then refers to the photocopy of the envelope which indicates (1) that it was not sent to Assistant Attorney General Grey but to Attorney General Spitzer, and (2) that it was sent certified mail, as required by statute (attempted service by registered mail would not comply with the statute).

Finally, counsel states: "Further, one year and one month after the fact [actually one year and two months], the Court has no jurisdiction under the Court of Claims action [sic; presumably "Act"] specifically Sections 10 and 11." This assertion ignores two crucial facts: (1) claimant's service of a notice of intention clearly setting forth the nature of his claim, by certified mail, return receipt requested, approximately three weeks after accrual, and (2) defendant's waiver of its right to assert any defense based on manner of service or timeliness (even if there were a basis to assert such a defense) resulting from its default in answering the claim (Court of Claims Act § 11[c]; see, Alicea v City University of New York, Ct Cl, unreported order filed January 4, 2000; Claim No. 100081; Motion No. M-59368).

In response to inquiry from the court, defense counsel advised, in a letter dated July 21, 2000, "There is a question about whether or not there was a Notice of Intent filed [sic][2] with respect to this claim. While the N.I. was not physically located in my documents, I did receive a faxed copy of a N.I. from our Motion Section in Albany which appears to be relevant."

In its third affirmation in opposition, defendant, now acknowledging the service of the claim, and the notice of intention, argues that the claim is nevertheless untimely because the notice of intention did not put the State on notice of the nature of the claim, a contention that is apparently based upon the fact that the claim contains more detail about the events surrounding the alleged assault than the notice of intention (which is typically the case). Such does not in any way indicate any defect in the latter document, which clearly states that claimant was being held in protective custody on October 13, 1998, when he was assaulted in a staircase by the inmate from whom he was ostensibly being protected while he was being escorted to the clinic, sufficient information to provide adequate notice of the nature of the claim, within the meaning of the Court of Claims Act, notwithstanding defendant's unsupportable assertion that claimant was required to name his assailant in order for the notice of intention to be valid.

Moreover, as previously noted, by defaulting in answering the claim, defendant has waived any right it would otherwise have to raise a jurisdictional defense based on an alleged improper manner of service, or alleged untimely service (Court of Claims Act §11[c]), and a defense that a notice of intention contains insufficient information is in fact a "timeliness" defense, since the sole effect of a notice of intention is to extend the time in which to serve and file a claim (see, Court of Claims Act §3).

To summarize thus far, defendant was served with the instant claim but neglected to interpose an answer because the document, which was apparently not read, was not identified as a claim and was mistakenly misfiled. After being served with a motion seeking a default judgment arising from its failure to interpose an answer, defendant first asked that the motion be denied because the claim was never served. After further inquiry, defendant discovered, on April 12, 2000, that the claim had in fact been served, and it acknowledged such fact to the court but asked that claimant's motion be denied, and that the claim be dismissed, because it was served at the wrong address and because it was served late. Proper adherence to the rules of civil procedure would have dictated, at that point, that defendant submit a cross-motion asking to be relieved of its default and allowed to interpose an answer, a necessary predicate for the relief of dismissal that it sought. However, such was not done. Defendant then submitted further opposition papers admitting that it had indeed been served with a notice of intention to file a claim, which would make the service and filing of the claim timely, but argued speciously that the notice was ineffective because it did not contain sufficient information as required by statute. Again, defendant requested that the claim be dismissed, and again, defendant failed to request that the court relieve it of its default in answering, a default that had been apparent and acknowledged since mid-April of this year. Having failed to make the required application for relief from its default, defendant's papers do not address what would be the crucial questions of (1) whether the default was excusable, and (2) whether defendant possesses a meritorious defense to the claim.

In a case with a factual background similar to the case before the court, to the extent that the State failed to answer a claim because of inadvertent oversight on the part of an assistant attorney general, it was held that when "the default in answering is not wilful, the defaulting party moves expeditiously for relief and the non-defaulting party is not unduly prejudiced, a court has discretion to permit the interposition of an answer" (Spickerman v State of New York, 85 AD2d 60). Here, although the State's failure to answer was initially non-wilful, it necessarily became "wilful" as of April 12, 2000 when the misfiled claim was discovered and it became aware that it had been served with the claim and had not served an answer. Regardless of any perception on the part of counsel that a defense might have existed based on improper, or untimely, service, it is basic that assertion of such a defense requires as a predicate the service of an answer setting forth the defense.[3] Moreover, and notwithstanding defendant's waiver of any such defenses by virtue of the passing of the period in which to interpose an answer, defendant's ability to defend the claim on the merits likewise depends on an answer responding to the pertinent allegations of the claim (Uniform Rules for the Court of Claims §206.7[a]). Defendant's repeated and cavalier requests that the court dismiss the claim ignore these basic principles of civil practice.

The court is somewhat at a loss to appreciate what, under these circumstances, the defendant expects it to do. Clearly, any result permitting relief from defendant's default and the interposition of an answer at this late date would be wholly improper and prejudicial, in view of defendant's failure to request such relief, a request that, had it been made, would have necessarily required much in the way of supporting argument that is not present in the instant motion papers. The question is where the absence of an answer leaves this claim?

Section 12(1) of the Court of Claims Act provides:
In no case shall any liability be implied against the state. No judgment shall be granted on any claim against the state except upon such legal evidence as would establish liability against an individual or corporation in a court of law or equity.
Thus, "while the State's failure to answer deprived it of the right to defend the claim, a judgment may be entered on the default only after claimant proves by ‘legal evidence' that he has a valid claim against the State. Such a procedure balances the need to impose sanctions for a party's default with the need to protect the State from baseless claims *** " (Spickerman v State of New York, 85 AD2d 60, 63 supra. [dissenting opinion]). Additionally, even without the limitation of §12, a default in answering only results in a finding for a plaintiff or claimant on the issue of liability, and does not impair the defaulting defendant's right to fully contest the question of damages (see, e.g., Amusement Business Underwriters v American International Group, 66 NY2d 878). The result is that this claim must be tried, notwithstanding defendant's default, and claimant will have to submit such evidence as will establish a prima facie case. At such trial, defendant shall be precluded from offering any evidence, testimonial or documentary, on the issue of liability, but it will be allowed to cross-examine claimant's witnesses. The conduct of defendant's case with respect to damages is unaffected by this decision.

Accordingly, the motion is granted to the extent indicated and is otherwise denied.

December 20, 2000
White Plains, New York

Judge of the Court of Claims

[1]Defendant has not indicated the basis for its contention that otherwise valid service of a claim would be vitiated by including the name of an assistant attorney general on the envelope, a dubious proposition at best. Nevertheless, it was not the case here.
[2]Notices of intention are not "filed" with the court in any event. Since an amendment to the Court of Claims Act in 1995, filing of a notice of intention is not required (L. 1995, c. 466).
[3]At least, as here, when the period for a pre-answer motion has expired.