New York State Court of Claims

New York State Court of Claims

FELDER v. THE STATE OF NEW YORK, #2003-030-519, Claim No. 105374, Motion No. M-66057


Synopsis



Case Information

UID:
2003-030-519
Claimant(s):
DANIEL FELDER
Claimant short name:
FELDER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
105374
Motion number(s):
M-66057
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
DANIEL FELDER, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: ELYSE ANGELICO, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
March , 2003
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 4, were read on Claimant's motion for an Order


directing the entry of a default judgment against the Defendant:

1,2 Notice of Motion; undated Affidavit in Support of Daniel Felder, Claimant

  1. Affirmation in Opposition of Elyse J. Angelico, Assistant Attorney General, dated January 8, 2003 and accompanying exhibits
  1. Filed Paper: Claim
After carefully reviewing the papers submitted and the applicable law the motion is disposed of as follows:

Claimant moves for an Order directing the entry of a default judgment on the basis that an Answer has not been served by the Attorney General within the prescribed time period. He asserts that the "...action was commenced by personal service of a summons, a copy of which is annexed hereto, upon the defendant on November 26, 2001...[and that a] verified complaint which is annexed hereto was served upon the defendants on November 26, 2001." [Affidavit in Support, ¶¶ 3 and 4]. No appropriate proof of service is annexed, except an Affidavit of Service completed by Claimant and dated October 30, 2002, indicating that he served "another copy" of a notice of intention to file a claim on the Attorney General on October 31, 2002 by "certified return receipt mail." The Court file contains a Claim numbered 105374 that is file stamped December 20, 2001. No affidavit of service is in the Court file indicating that this document was served upon the Office of the Attorney General.

Defendant indicates that a Notice of Intention to file a claim was apparently served on the Office of the Attorney General on November 26, 2001. [Affirmation in Opposition, ¶ 5, Exhibit "B"]. No claim, however, was ever served. [Ibid]. Defendant argues that because no Claim was ever served as required, no obligation to serve an Answer within forty (40) days was triggered. See, generally, Court of Claims Act §§10 and 11; 22 NYCRR §206. 7(a). This Court agrees.

Since Claimant has not established that his Claim was served upon the Attorney General as required, he has not established that their office was then required to serve its Answer and has failed to do so.

Accordingly, Claimant's motion for an order directing the entry of a default judgment is in all respects, denied.


March , 2003
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims