New York State Court of Claims

New York State Court of Claims

POWELL v. THE STATE OF NEW YORK, #2003-016-066, Claim No. 103912, Motion No. M-66836


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):

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 5, 2003
New York

Official citation:

Appellate results:

See also (multicaptioned case)


This is claimant George Powell's motion for a default judgment against the "State of New York, the New York City Department of Court Officers, Courts Security Services, Court Officer Julio Lebron" and other unknown court officers. In his underlying claim, Mr. Powell asserts that he was assaulted by court officers at the Bronx Criminal Court on January 31, 2000. As an initial matter, as noted in the Court's previous Decision and Order filed October 9, 2002, the Court of Claims only has jurisdiction over the State of New York and the Court will therefor consider claimant's request for a default judgment only with respect to the State.

The relevant procedural history is as follows. Defendant was served with Powell's claim on March 1, 2001. On February 19, 2002, claimant moved for a default judgment (motion no. M-64745) on the grounds that defendant had failed to answer. Defendant did not dispute that it had failed to answer and in fact cross-moved (cross-motion no. CM-65029) for an order relieving it of its default and granting it permission to serve and file an answer. Defendant's excuse was that when it was served with Powell's claim, the Managing Attorney's office mistakenly failed to forward the document to the Claims Bureau and thus no answer was prepared.

Noting that defendant's default did not appear willful, that it had moved expeditiously for relief and that claimant would not be unduly prejudiced, the Court denied claimant's motion and granted defendant's cross-motion, directing defendant to serve and file its answer within forty-five days of the filing of the Decision and Order, which occurred on October 9, 2002.

On April 24, 2003, the Court sent a letter to the parties scheduling a conference for May 27, 2003. On May 15, 2003, counsel for defendant wrote the Court stating that "[i]t has just come to my attention when I received the letter notifying of a conference on May 27, that the defendant has not served and filed the Answer to this Claim as directed in your Order filed on October 9, 2002. . . The Answer was not served due to my error. While I served Notice of Entry upon claimant's attorney on November 12, 2002, I did not serve the Answer. This was an oversight on my part. . . Therefore, I request that the Court modify its order and permit defendant to serve and file the Answer at this time . . ."

Claimant then filed the instant motion for a default judgment on May 19, 2003.
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In view of the foregoing, I conclude that defendant is in default. But such does not directly result in a default judgment, inasmuch as §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.

See the dissenting opinion in Spickerman v State of New York, 85 AD2d 60, 448 NYS2d 569 (3d Dept 1982).[1] Substantively, on the contours of "such legal evidence," see for example, Gibson v State of New York, Ct Cl dated December 20, 2000 (unreported, claim no. 101212, motion no. M-61208, UID No. 2000-017-611, O'Rourke, J.) and 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, McNamara, J.).[2]

Procedurally, at trial, defendant will be precluded from offering any testimonial or documentary evidence, but will be allowed to cross-examine claimant's witnesses. Gibson, supra; see also Seabury v State of New York, Ct Cl dated September 16, 2002 (unreported, claim no. 105239, motion no. M-64533, Waldon, J.). Should liability obtain, the conduct of defendant's case with respect to damages shall not be affected by this decision. Amusement Business Underwriters v American International Group, Inc., 66 NY2d 878, 498 NYS2d 760 (1985).

Accordingly, having reviewed the parties' submissions,[3] IT IS ORDERED that motion no. M-66836 be granted to the extent indicated and otherwise be denied.

September 5, 2003
New York, New York

Judge of the Court of Claims

  1. [1] The majority and minority judges in Spickerman differed over whether the State had an adequate excuse for its failure to answer.
  2. [2]Such decisions may be found on the Court's website at
  3. [3]The following were reviewed: claimant's notice of motion with affirmation in support and exhibits A-D; and defendant's affirmation in opposition.