New York State Court of Claims

New York State Court of Claims

SMITH v. STATE OF NEW YORK, #2004-018-290, Claim No. 106573, Motion No. M-67583


Synopsis


Case Information

UID:
2004-018-290
Claimant(s):
MICHAEL SMITH
Claimant short name:
SMITH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
106573
Motion number(s):
M-67583
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
MICHAEL SMITHPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: HEATHER R. RUBINSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
March 16, 2004
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings a motion for a default judgment pursuant to CPLR 3215. He alleges

that he served a "verified complaint" upon the defendant by certified mail, return receipt requested, on August 28, 2002, and has not received any answer or motion from defendant, nor has he extended the State's time to answer. Attached to his claim is a copy of an affidavit of service indicating he served a copy of the notice of intention to serve a claim by certified mail, return receipt requested on July 9, 2002. Claimant also submitted another pre-printed affidavit of service form, on which neither the notice of intention nor claim is marked as being served. According to the second affidavit, service was made by certified mail, return receipt requested on August 28, 2002. The claim was verified on August 28, 2002, and the date the return receipt was completed is September 3, 2002.

Defendant, in response, asserts that the first notice of this claim it registered as receiving was a letter dated October 2, 2003, from claimant requesting a default judgment. The Albany office of the Attorney General received that letter on October 14, 2003, which included copies of the return receipts, purportedly acknowledging service of the notice of intention and the claim. Copies of the letter and enclosures were provided to the Syracuse regional office on October 16, 2003, and an Assistant Attorney General was assigned to the claim on October 22, 2003. On that date a copy of the claim was obtained from the Clerk of the Court by facsimile. On November 25, 2003, defendant filed and served an answer to the claim.

Accepting, for purposes of this motion, that proper service was made upon the Attorney General, there was a failure of the established procedures in the Attorney General's office for receipt of claims, resulting in a failure to timely answer.

The decision of whether to grant a default judgment is discretionary. Some factors that may be considered in determining whether a default judgment should be granted are the reason for the default, whether a potentially meritorious defense exists, and whether claimant will suffer any prejudice; factors which are considered in deciding whether to vacate a default judgment. (see CPLR 5015(a); Rooney v Webb Avenue Associates, LTD., 1 AD3d 246; Linzy v Christa Const. Inc., 238 AD2d 936; Coakley v Gabel, 158 AD2d 954, appeal dismissed in part, denied in part by 76 NY2d 931; Johnson v Gumer, 94 AD2d 956).

Here, defendant has set forth a meritorious defense by the factual allegations in its verified answer, and claimant will suffer no prejudice by the Court relieving defendant of its default (see, Linzy v Christa Const. Inc., 238 AD2d 936, supra; Photovision International, Inc. v Thayer, 235 AD2d 467; Johnson v Gumer, 94 AD2d 956, supra). Under these circumstances, the Court declines to enter a judgment by default in the first instance.

Claimant's motion is DENIED.

March 16, 2004
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims



The Court has considered the following documents in deciding this motion:


Notice of Motion........................................................................................................1


Affidavit of Michael Smith, in support......................................................................2


Affirmation of Heather R. Rubinstein, Esquire, Assistant Attorney General,

in opposition, with exhibits attached thereto...................................................3