New York State Court of Claims

New York State Court of Claims

POWELL v. THE STATE OF NEW YORK, #2002-016-073, Claim No. 103912, Motion Nos. M-64745, CM-65029


Synopsis


Claimant's motion for a default judgment was denied and defendant's cross-motion to be relieved of its default and for permission to file and serve an answer was granted.

Case Information

UID:
2002-016-073
Claimant(s):
GEORGE POWELL The caption has been amended to reflect that the sole proper defendant in this case is the State of New York; neither individual persons nor the City of New York may be sued in the Court of Claims.
Claimant short name:
POWELL
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption has been amended to reflect that the sole proper defendant in this case is the State of New York; neither individual persons nor the City of New York may be sued in the Court of Claims.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103912
Motion number(s):
M-64745
Cross-motion number(s):
CM-65029
Judge:
Alan C. Marin
Claimant's attorney:
G. Wesley Simpson, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Grace A. Brannigan, Esq., AAG
Third-party defendant's attorney:

Signature date:
September 20, 2002
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

This is George Powell's motion for a default judgment against the State of New York, which has not answered the claim since being served on March 1, 2001. Defendant cross-moves to be relieved of its default and for permission to serve and file an answer at this time. In the underlying claim, Mr. Powell asserts that he was assaulted by court officers at the Bronx Criminal Court on January 31, 2000. Defendant explains that when a claim is served on the office of the Attorney General in New York City, it is received in the Managing Attorney's office, and is then supposed to be forwarded to the Claims Bureau to be answered. Defendant asserts that in the case of Powell's claim, the Managing Attorney's office failed to so forward the document to the Claims Bureau. Defendant maintains that the Claims Bureau only learned of the existence of Powell's claim upon receipt of his motion for a default judgment.

Section 12.1 of the Court of Claims Act provides that "[i]n 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." There is some authority that such means that a default judgment is prohibited against the State. See, e.g., Green v State of New York, Ct Cl dated February 19, 2002 (unreported, claim no.104740, motion no. M-64451, UID No. 2002-011-513 (www.nyscourtofclaims.state.ny.us/decisions), McNamara, J.). See also Spickerman v State of New York, 85 AD2d 60, 448 NYS2d 569 (3d Dept 1982), Casey, J., dissenting opinion.

Such issue aside, however, it has been held that the Court of Claims has the discretion to deny a default motion and permit defendant to interpose an answer where "the default in answering is not willful, the defaulting party moves expeditiously for relief and the non-defaulting party is not unduly prejudiced . . ." Id., 85 AD2d at 61, 448 NYS2d at 570. In this case, there is no evidence that the default was wilful. Moreover, defendant cross-moved for relief as soon as the Claims Bureau learned of the existence of Powell's claim. As to prejudice, other than a blanket statement that claimant would be prejudiced, no specifics have been provided by Powell.

In view of the foregoing and of the strong public policy which supports deciding matters on their merits[1], having reviewed the parties' submissions[2], IT IS ORDERED that motion no. M-64745 for a default judgment be denied, that cross-motion no. CM-65029 be granted and that within forty-five (45) days of the filing of this Decision and Order, defendant shall serve and file an answer.


September 20, 2002
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




  1. [1]See, e.g., J.R. Stevenson Corp. v Dormitory Auth. of State of N.Y., 112 AD2d 113, 116, 492 NYS2d 385, 388 (1st Dept 1985). See also Spickerman, supra, 85 AD2d at 61, 448 NYS2d at 570, citing the "traditional concepts of permitting a litigant, against whom a claim is made, to have his day in court . . ."
  2. [2]The following were reviewed: claimant's notice of motion with affirmation in support and exhibits A-C; defendant's notice of cross-motion with affirmation in support and in opposition to motion and exhibit A; and claimant's affirmation in reply to motion and in opposition to cross-motion.