New York State Court of Claims

New York State Court of Claims

PORTER v. THE STATE OF NEW YORK, #2004-030-556, Claim No. 107790, Motion No. M-68406


Synopsis



Case Information

UID:
2004-030-556
Claimant(s):
ALLEN PORTER
Claimant short name:
PORTER
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107790
Motion number(s):
M-68406
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant's attorney:
ALLEN PORTER, PRO SE
Defendant's attorney:
HON. ELIOT SPITZER, NEW YORK STATE ATTORNEY GENERALBY: J. GARDNER RYAN, ASSISTANT ATTORNEY GENERAL
Third-party defendant's attorney:

Signature date:
July 30, 2004
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers, numbered 1 to 5, were read and considered on Claimant's motion


for a default judgment:

1,2 Notice of Motion and Affidavit by Allen Porter, Claimant, sworn to February 23, 2004

  1. Affirmation by J. Gardner Ryan, Assistant Attorney General, dated May 28, 2004[1]
  1. Letter Reply by Allen Porter, dated July 1, 2004
  1. Filed papers: Claim; Decision and Order, Porter v State of New York, Claim No. NONE, Motion No. M-66459 (Scuccimarra, J., filed May 9, 2003)
After carefully considering the papers submitted and the applicable law the motion is disposed of as follows:

In order to establish entitlement to a default judgment [See generally Civil Practice Law and Rules §3215] it is the movant's burden - here, the Claimant - to show that the Claim herein was served upon the Attorney General's Office as required by this Court's prior Decision and Order granting late claim relief, as well as the pertinent provisions of the Court of Claims Act, [See Court of Claims Act §§10, 11 and 11-a], and the Defendant has failed to answer the claim.

In support of the present motion although the Claimant has provided copies of certified mail receipts showing some item of mail was sent to the Attorney General's Office by certified mail, return receipt requested, and received on May 27, 2003, the Affidavit in Support of the motion recites only that a copy of this Court's prior Decision and Order granting late claim relief was served, not the Claim itself as required, within the time constraints of this Court's Decision and Order. Moreover, the file maintained by the Chief Clerk of the Court of Claims does not contain an affidavit of service attesting to the service of the Claim by certified mail, return receipt requested upon the Attorney General's Office.

Accordingly, Claimant's motion number M-68406 for a default judgment based upon the Defendant's failure to serve an Answer within its statutory time constraints [See generally Court of Claims Act §§10 and 11; 22 NYCRR §206. 7(a)] is in all respects denied.


July 30, 2004
White Plains, New York

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




[1] No cross-motion to dismiss has been properly brought before the Court therefore the Court does not address Defendant's request that the Claim be dismissed sua sponte.