New York State Court of Claims

New York State Court of Claims

FIRTH v. THE STATE OF NEW YORK, #2001-015-139, Claim No. 103492, Motion No. M-63029


Claimant's motion to strike the State's answer as a sham, to award default judgment and to impose sanctions on the Attorney General for failing to properly verify the State's answer is denied.

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:
Carl G. Dworkin, Esquire
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Dennis M. Acton, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 10, 2001
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion to strike the defendant's answer, to award a default judgment and to impose sanctions is denied. By notice of motion and supporting affirmation dated January 29, 2001 claimant's attorney moved this Court for an order striking the defendant's answer and verification, granting a default judgment and imposing sanctions upon the defendant. Claimant's attorney seeks the specified relief on the grounds that the assistant attorney general assigned to this matter was the attorney of record on a prior claim (#97999) generally involving the same facts as alleged in the instant claim which was dismissed upon defendant's motion for summary judgment.

Claimant's attorney argues that since the same attorney represented the defendant on both claims, defense counsel should be precluded from denying knowledge and information with respect to certain factual allegations set forth in the claim. The attorney seeks to have denials contained in the defendant's verified answer (and arguably the verified amended answer) struck as ludicrous, defying rationality and a sham. It is not necessary to address each of the claimant's specific objections to the denials contained in the answer. Claimant does not reference a statutory basis for the motion to strike the defendant's answer as a sham and, in fact, such a motion has not existed in New York civil practice since the adoption of the Civil Practice Law and Rules in 1963. Professor Siegel in his commentaries to § 3018 of the CPLR (Siegel, Practice Commentaries, McKinney's Cons Law of NY Book 7B, CPLR C 3018:4 at 148) notes that "Rule 103 of the old (pre-1963) Rules of Civil Practice authorized a motion to strike a denial if it was found to be a sham. " He further states that "[t]he CPLR has no such motion. There is no motion to strike denials, whether because sham or frivolous or interposed in bad faith or anything else." Professor Siegel suggests the plaintiff's remedy is to pursue summary judgment if the denials are in improper form and are directed at issues which go to the heart of the case. If the denials are in proper form, or substantially so, plaintiff has no remedy but to prepare the proof and get ready for trial. Professor Siegel suggests an alternative remedy pursuant to CPLR 3212 (g) which allows the Court on a motion for summary judgment to deem established those allegations in the complaint which the defendant has not properly denied. Another alternative suggested in the commentary is for plaintiff (or in this case the claimant) to elicit admissions from the defendant of the matters improperly denied through a notice to admit authorized by CPLR § 3123. Siegel suggests that if the defendant unreasonably denies under that provision and the plaintiff is put to his proof plaintiff may recover the cost of such proof from the defendant. Recovery of costs, however, is not available against the State in the Court of Claims with limited statutory exceptions (see, Court of Claims Act § 27).

In any event, it appears that neither the Court of Claims Act, the Uniform Rules for the Court of Claims, nor the CPLR permit a motion to strike an answer on the ground urged by the claimant and, accordingly, claimant's motion in this respect is denied (see, Abrahao v Perrault, 147 AD2d 824). Claimant by this same motion, further seeks the imposition of sanctions against the defendant for the failure to include as part of the State's answer to the instant claim a proper verification. Claimant seeks to impute to the assigned assistant attorney general on the instant claim knowledge of this Court's Order dated June 18, 1998 and issued upon Motion M-57431. At the time the earlier motion was made the State was represented by a different assistant attorney general than the one now assigned.

The Court, in the exercise of its discretion, refuses to impute knowledge of the prior Order to the presently assigned assistant attorney general despite the fact that subsequent to the June 18, 1998 decision and order of this Court he took over the representation of the defendant with regard to claim number 97999. Even if such knowledge were imputed to the State's present attorney this Court would not be inclined to impose sanctions absent proof that defense counsel deliberately refused to follow an order or mandate of the Court in that regard. No such proof has been offered here.

Claimant also seeks an order of the Court imposing sanctions on the defendant for filing an answer alleged to be frivolous and a sham citing a 1910 decision of the Court of Appeals (Dahlstrom v Gemunder, 198 NY 449, 454). As noted, a motion to strike an answer as a sham does not exist in current New York civil practice and therefore cannot serve as a basis for the imposition of sanctions. Claimant's motion pursuant to 22 NYCRR 130.11 for the imposition of sanctions for the defendant's conduct in the preparation and filing of its answer is denied.

April 10, 2001
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated January 29, 2001;
  2. Affirmation of Carl G. Dworkin dated January 29, 2001 with exhibits;
  3. Affidavit of Dennis M. Acton sworn to February 6, 2001.