New York State Court of Claims

New York State Court of Claims

JACOBS v. THE STATE OF NEW YORK, #2004-031-140, Claim No. 105897, Motion No. M-68119


Defendant's motion to reargue previous motion is granted. Order granting Claimant default judgment against Defendant is vacated

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:
November 1, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers, numbered 1 to 7, were read on motion by Defendant, pursuant to CPLR § 5015, to open a default judgment:
  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;
4) Affirmation of Timothy P. Mulvey, Esq., dated August 6, 2004;
5) Claimant's unsworn "Response to Judge's Interim Decision," dated August 9, 2004;
6) Claimant's unsworn "Response to the Defendant's Affirmation," dated August 12, 2004;
  1. Filed Documents: Claim, Answer, Amended Claim, Decision and Order (M-65201) filed September 11, 2002, Decision and Order (M-66287) filed February 18, 2004, Interim Decision filed July 7, 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 and order 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 decision and 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 decision, on October 18, 2002. Claimant filed and served an amended claim on October 31, 2002. Defendant neither filed nor served an answer to the amended claim. By order filed February 18, 2004, I granted Claimant's motion for a default judgment against Defendant relating to Defendant's failure to respond to the amended claim. By interim decision filed July 7, 2004, I adjourned a motion by Defendant, which apparently sought to open the default judgment, but was denominated a motion to reargue, until August 25, 2004. I now address Defendant's motion to open the default judgment granted against it.
With this motion, Defendant seeks to open the default judgment granted in motion M-66287. In support of its motion, 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. Counsel for Defendant implies that he 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. Additionally, Defendant asserts that, because the amended claim asserts the very causes of action which were dismissed by Judge Corbett in his 2002 decision and order, Claimant should not be permitted to revive those claims.

As stated in my interim decision, I recognize that the Defendant's default was not willful or intentional and was, in part, due to the timing of its receipt, so close to the filing of its answer of a document so identical to the original claim as to easily have been 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 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).

I find that, for the most part, the claim and the amended claim in this case are virtually unintelligible. Defendant asserts that many of the causes of action asserted in the amended claim are barred by the doctrine of res judicata, and asks that its default be excused in the interest of justice. To deny Defendant's motion would, in effect, be rewarding the Claimant for merely filing as confusing and prolix a document as possible in the hope that it would confuse Defendant's counsel.

Claimant opposes Defendant's motion, arguing that Defendant is represented by a "professional state attorney general" who is trying to justify his "negligence and malpractice" (Claimant's August 12, 2004 statement p. 3). Claimant also asserts that Defendant has failed to offer a reasonable excuse for not answering the amended claim. Nowhere in either of the statements submitted by Claimant, which total approximately 20, single-spaced, typewritten pages, does Claimant assert that Defendant's default was willful, nor does he identify any manner in which granting the motion and permitting Defendant to defend this action on the merits would prejudice Claimant.

Simply stated, Defendant has admitted law office failure relating to its response to the amended claim. I find that, under the facts of this case, this failure is excusable. "CPLR 2005 specifically permits the court to exercise its discretion in the interest of justice and excuse a default resulting from law office failure" (Mothon v ITT Hartford Group, 301 AD2d 999, 1000; Castillo v Garzon-Ruiz, 290 AD2d 288, 290,). As stated in Vita v Alstom Signaling, Inc. (308 AD2d 582): "Where, as here, there is no evidence of willfulness, deliberate default, or prejudice to the plaintiffs, the delay in answering the complaint was brief, and the defense is meritorious, the interest of justice is best served by vacating the default and permitting the case to be decided on its merits." Likewise, in this instance, I find that the absence of willfulness or prejudice to Claimant demand that the default be vacated and Defendant be permitted to defend the claim on the merits.

Accordingly, it is hereby

ORDERED, that Defendant's motion is granted. The default judgment granted against Defendant by Decision and Order of this Court filed on February 18, 2004 is hereby vacated. Defendant shall serve an answer to the amended claim within 40 days of the filed date of this order.

November 1, 2004
Rochester, New York

Judge of the Court of Claims