New York State Court of Claims

New York State Court of Claims

JACOBS v. THE STATE OF NEW YORK, #2004-031-086, Claim No. 105897, Motion No. M-68119


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):

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:
June 25, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 3, were read on motion by Defendant to reargue a previous motion which granted default judgment to Claimant:
1) Notice of Motion, filed March 3, 2004;
2) Affirmation of Timothy P. Mulvey, Esq., dated March 1, 2004, with attached exhibits;
3) Claimant's unsworn statement, dated March 8, 2004. PROCEDURAL HISTORY

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 decision filed on September 11, 2002, the Honorable Donald J. Corbett, Jr. 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, identifying various deficiencies in the dismissed causes of action, specifically noted "Claimant's right . . . 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 decision, on October 18, 2002. However, following Judge Corbett's suggestion, Claimant filed and served an amended claim on October 31, 2002. Defendant neither filed nor served an answer to the amended claim. By decision and order filed February 18, 2004, I granted Claimant's motion (M-66287)for a default judgment against Defendant relating to Defendant's failure to respond to the amended claim.

With this motion, Defendant seeks reargument of motion M-66287 in which I granted Claimant's application for default judgment. A motion to reargue is governed by CPLR 2221[d][2] and "is designed to afford a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle of law. Its purpose is not to serve as a vehicle to permit the unsuccessful party to argue once again the very questions previously decided . . . (citations omitted). Nor does reargument serve to provide a party an opportunity to advance arguments different from those tendered on the original application" (Foley v Roche, 68 AD2d 558, 567-568).

Defendant points to the fact that Claimant's pleadings, both the original claim and the amended claim, are extremely lengthy, repetitive, and at times completely incomprehensible. Defendant implies that it confused the claim and the amended claim as they are virtually identical. Apparently, Defendant argues that it is this confusion that led to the default. Defendant also asserts that, in its determination of the motion for default judgment (M-66287), the Court misapprehended the facts and misapplied the law in that the amended claim filed by Claimant was, in all substantial respects, identical to the original claim which was, for the most part, dismissed by Judge Corbett. Defendant argues that it would be improper to permit Claimant to revive those claims that were already dismissed by Judge Corbett.

This represents an unpleasant predicament for the Court, one that, regardless of the lack of willfulness on Defendant's part, was brought about by Defendant's failure to simply respond to the amended claim. On one hand, one could argue that Defendant's failure to answer the amended claim should not be excused, as the defenses suggested by Defendant as the basis for this motion could and should have been asserted in a pleading responsive to the amended claim. On the other hand, the Court does recognize that the Defendant's default was not willful or intentional and due, in part, to the timing of its receipt, so close to the filing of its answer to the original claim, of a document so similar to the original claim as to have been easily mistaken for a copy of the original. This fact is compounded by the content of these two documents. A review of the meandering claim and amended claim is an extremely arduous and confusing task. Each of these documents is so unclear, confusing and prolix that, arguably, neither comply with § 11 of the Court of Claims Act, the purpose of which "is to give the State prompt notice of an occurrence and an opportunity to investigate the facts . . ." (Cannon v State of New York, 163 Misc 2d 623, 626).

To me, it appears that Defendant's motion is misnamed. The arguments set forth by Defendant attempt to present grounds to excuse Defendant's default (CPLR 5015), as opposed to grounds to reargue the previous motion, which requires a mistake of law or fact by the Court. Defendant has not identified a mistake of law or fact made by the Court. Defendant failed to answer the amended claim and was, therefore, properly found to be in default. Defendant's arguments relating to what may or may not be valid defenses to the amended claim call to mind the opinion of the Honorable Andrew P. O'Rourke in Gibson v State of New York (Ct Cl, December 20, 2000 [Claim No. 101212, Motion No. M-61208], UID #2000-017-611), a case counsel may have already reviewed, in which Judge O'Rourke, in a similar situation, stated: "Regardless of any perception on the part of counsel that a defense might have existed . . . it is basic that assertion of such a defense requires as a predicate the service of an answer setting forth the defense . . . . Defendant's repeated and cavalier requests that the court dismiss the claim ignore these basic principles of civil practice."

Rather than a mistake of law or fact made by the Court, Defendant's argument seems to be based upon its own mistake in not identifying the amended claim for what it was and serving a timely answer to it.

However, I find that, for the most part, the claim and the amended claim in this case are virtually unintelligible. As it appears, and Claimant does not contest, that the amended claim is in all manners, except for the word "amended," identical to the original claim which was substantially dismissed by Judge Corbett, I find that the interests of justice are best served by treating Defendant's motion as one to excuse Defendant's default pursuant to CPLR 5015. So, as to prevent any prejudice to Claimant in so interpreting the motion, I hereby adjourn the return date of this motion to August 25, 2004, in order to give each party a chance to make further submissions to the Court in light of this interim decision. All such submissions are to be made in accordance with the provisions of the CPLR.

June 25, 2004
Rochester, New York

Judge of the Court of Claims