New York State Court of Claims

New York State Court of Claims

JACOBS v. THE STATE OF NEW YORK, #2004-031-005, Claim No. 105897, Motion Nos. M-66287, M-66811


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):
M-66287, M-66811
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
New York State Attorney General
BY: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 20, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 9, were read on motions by Claimant for an order granting default judgment in his favor and for an order compelling Defendant to respond to Claimant's discovery:
  1. Notice of Motion (M-66287), filed January 16, 2003;
2) Claimant's "Motion for Entry of Default Judgment," dated January 8, 2003;
3) Claimant's unsworn Affidavit, dated January 8, 2003;
4) Affirmation of Timothy P. Mulvey, Esq., dated January 21, 2003;
  1. Claimant's unsworn response to Defendant's Affirmation, dated January 31, 2003;
6) Notice of Motion (M-66811), filed May 14, 2003;
7) Two Affidavits from Claimant, both sworn to May 9, 2003;
8) Affirmation of Timothy P. Mulvey, Esq., dated June 3, 2003;
9) Claimant's unsworn response, filed June 11, 2003. Claimant has filed two motions in this matter - one for default judgment against Defendant, based upon Defendant's failure to answer Claimant's amended claim, and one to compel disclosure from Defendant. I will deal with each motion in order.
It should be noted that the original claim in this matter was filed on April 12, 2002. Rather than filing an answer, Defendant moved for dismissal of the claim (M-65201). By order filed on September 11, 2002, the Honorable Donald J. Corbett, Jr., (retired) granted Defendant's motion in part and dismissed several of the causes of action set forth in the original claim, but not the entire claim. In that order, Judge Corbett also specifically noted "Claimant's right, if he so desires, to serve and file an amended claim within 40 days of service of a file-stamped copy of this order." Defendant filed an answer to the original claim, as limited by Judge Corbett's order, on October 18, 2002. Claimant filed and served an amended claim on October 31, 2002. Defendant has neither filed nor served an answer to the amended claim.
With motion M-66287, Claimant seeks default judgment relating to Defendant's failure to answer Claimant's amended claim, which was both filed with the Clerk of the Court and served upon Defendant on October 31, 2002. This motion was, as were the previous matters relating to this claim, originally before the Honorable Donald J. Corbett, Jr.

There is no issue as to the timeliness of the amended claim. Not only was it filed within the time to do so as of right pursuant to CPLR 3025(a), but Judge Corbett had specifically afforded Claimant the opportunity to amend his claim within 40 days of service of his September 11, 2002 order.

In its opposition to Claimant's motion for default judgment, Defendant asserts only that it filed an answer to the claim on October 18, 2002. While this may be true, it does not adequately address the merits of Claimant's motion. It appears that Defendant has confused the amended claim with the original claim. Both documents are quite lengthy and prolix. However, while Defendant's initial confusion is perhaps understandable, Claimant's response clearly sets forth that Defendant failed to answer the amended claim, and that the amended claim was served upon Defendant on October 31, 2002. This was after the Defendant's answer was filed on October 18, 2002. Therefore, Defendant's answer, filed on October 18, 2002, could not possibly have addressed the allegations set forth in the amended claim. And, of course, an answer to an amended claim is required (see CPLR 3025(d)).

Defendant has offered nothing in response to this motion to contradict Claimant's assertion that Defendant is in default. Nor has Defendant attempted to set forth any explanation for, or mitigation of, the fact that it failed to answer the amended claim. In such an instance, the court has no choice but to grant Claimant's application.

However, the Court of Claims Act prohibits the entry of default judgment against the State. Section 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."
I find that a trial of this matter is still required, but that Defendant should be barred from presenting any proof at the time of trial relating to the liability aspect of the matters alleged in the amended claim. Defendant will, however, be permitted to cross-examine Claimant's witnesses (Gibson v the State of New York, Ct Cl, December 20, 2000 [Claim No. 101212, Motion No. M-61208], O'Rourke, J., UID #2000-017-611). Should Claimant prevail on the issue of liability, the damages portion of this case shall not be affected by this decision (Amusement Business Underwriters v American International Group, Inc., 66 NY2d 878).


With motion (M-66811) filed May 14, 2003, Claimant seeks an order compelling Defendant to respond to his discovery demand, which Claimant alleges was served on November 29, 2002. In defense of this motion, Defendant argues only that most of the causes of action set forth in the claim were dismissed by Judge Corbett's September 11, 2002 order. Defendant does not, however, address the fact that these causes of action were alleged (and have not been dismissed) in Claimant's amended claim. For this reason, Defendant's defense to this motion is without merit.

Accordingly, for the reasons stated above, it is hereby

ORDERED, that Claimant's motion for default judgment is granted to the extent noted above, and it is further

ORDERED, that Claimant's motion for an order compelling Defendant to respond to Claimant's November 29, 2002 discovery demand is granted. Defendant shall respond to Claimant's demand within 45 days of the filed date of this decision and order.

January 20, 2004
Rochester, New York

Judge of the Court of Claims