New York State Court of Claims

New York State Court of Claims

BLANCHE v. THE STATE OF NEW YORK, #2006-013-004, Claim No. 108042, Motion Nos. M-70746, CM-70771


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:
Attorney General of the State of New York
BY: REYNOLDS E. HAHN, ESQ.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
February 21, 2006

Official citation:

Appellate results:

See also (multicaptioned case)


On November 16, 2005, the following papers were read on motion by Claimant for a default judgment, and by Defendant on cross-motion for an extension of time to file its answer.

Notice of Motion (M-70746) and Motion/Verification and Exhibits Annexed

Notice of Cross-Motion (CM-70771), Affirmation and Exhibits Annexed

Claimant’s Reply Affirmation (sic) and Exhibit Annexed

Letter from Defendant dated November 8, 2005

Letter from Claimant dated November 10, 2005

Filed Papers: Claims

Upon the foregoing papers, the motion is denied and the cross-motion is granted.

In this motion Claimant seeks a default judgment in Claim No. 108042. A brief summary of the history of this claim provides a necessary overview. The claim herein was filed on July 23, 2003, and the Defendant, in lieu of an answer, made a motion for dismissal. Claimant cross-moved for permission to file a late claim.

In a decision and order in Motion Nos. M-67310 and CM-67494, dated February 24, 2004, I granted Defendant’s motion to dismiss and also granted Claimant’s motion for permission to file a late claim. Claimant appealed from my dismissal of Claim No. 108042, but also filed the permitted late claim on April 30, 2004, which was assigned Claim No. 109287, to which the Defendant served and filed its answer dated May 20, 2004.

The appeal of my dismissal of Claim No. 108042 was decided by the Appellate Division, Fourth Department. In an order entered on April 29, 2005 (17 AD3d 1069), the Appellate Division reversed my decision and order, reinstated Claim No. 108042 and dismissed the cross-motion for permission to file a late claim. Of course by that time Claimant had already filed Claim No. 109287. In another decision and order, in Motion No. M-69630, dated April 13, 2005, I dismissed Claim No. 109287 on the ground that late claim relief for inmate claims for personal property was not available. Claimant filed a notice of appeal to the Fourth Department on May 9, 2005, but apparently has not perfected such appeal. Regardless, the status of that appeal has no bearing on the issues before me today.

Claimant now moves for a default judgment against the State, as he contends, without dispute, that the Defendant did not serve or file its answer to Claim No. 108042, despite having been served on May 7, 2005 with the above-cited order by the Appellate Division. Accordingly, Claimant moves for a default judgment pursuant to CPLR 3215(f) in the amount demanded in his claim of $3,934.83, with interest from October 6, 2002 and other equitable relief.

By Cross-Motion No. CM-70771, the Defendant seeks an order pursuant to CPLR 2005 and 3012(d), either extending its time to serve and file its answer in the instant claim, or in the alternative deeming the Defendant’s answer in Claim No. 109287 (dated May 20, 2005) to have been timely served as to the instant claim.

Defendant notes that the reversal by the Appellate Division and reinstatement of Claim No. 108042, along with my dismissal of Claim No. 109287, occurred “[a]lmost coincidentally,” an assertion that is essentially without dispute. Defendant also acknowledges, inter alia, that it was served with the order of reinstatement by mail on May 7, 2005 (received on May 10, 2005 - Exhibit G to the cross-motion) and thus, pursuant to CPLR 3211(f), its answer would have been due on May 22, 2005.

The cross-motion contends that the Defendant’s oversight was nothing more than law office error, that its answer to Claim No. 109287, dated two days prior to the due date for the answer in the current claim, is essentially identical to the proposed answer (Exhibit H to the cross-motion) in Claim No. 108042, except that three paragraphs, Nos. 7, 16 and 17, would be admitted and the third and fourth affirmative defenses would be eliminated. It urges that the four-month delay in serving and filing its answer here has not legally prejudiced Claimant, has not given the Defendant any advantage due to the delay nor will it gain any pleading advantage.

Claimant demurs in part. First, he acknowledges that the two claims are virtually identical. But one of his primary concerns is that “the Court treated them as two separate claims,” and he incurred an initial filing fee of $40.00 when he filed Claim No. 108042 and a second filing fee of $50.00 when he filed Claim No. 109287. There is no dispute that Claimant did incur a second filing fee, which he would not have incurred if I denied the Defendant’s dismissal motion, and if I had denied Claimant’s late claim application. In both instances the Appellate Division issued rulings contrary to my decision and order in Motion Nos. M-67310 and CM-67494, dated February 24, 2004. The imposition of a second filing fee is the direct result of my motion decision above, but not any action or inaction by the Defendant. While Claimant raises his arguments articulately, he seemingly overlooks that the effect of my original decision in Motion Nos. M-67310 and CM-67494 allowed him to preserve his personal property claim where it might have been subject to dismissal upon appeal. None of the delay or the purported prejudice he has sustained is attributable to the Defendant, except to the extent that the Defendant sought dismissal.

Thus, the answer herein should have been filed by May 22, 2005. The cross-motion herein was mailed on October 5, 2005, some 4½ months late. There is no prejudice that I can discern from that period of delay, and the Defendant’s answer in Claimant No. 109287, dated May 20, 2004 and filed on May 24, 2004, essentially identical to the proposed answer (except for the minor differences noted above) for claims which were virtually identical, eliminates any argument about surprise.

I find that the contemporaneous aspects of the reversal of dismissal of this claim by the Appellate Division, along with dismissal of the late claim previously permitted, and the essential identicalness of the claims, provide a reasonable explanation for the Defendant’s inadvertent default. In similar circumstances, albeit after a default judgment had already been entered against the State of New York, Judge Minarik, in Jacobs v State of New York (Ct Cl, UID #2004-031-140, Claim No. 105897, Motion No. M-68119, Nov. 1, 2004)[1], summarized the law and the judicial considerations aptly:

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.

Of course in the matter above, a default judgment had already been entered, yet the court vacated the same in its discretion. In another comparable situation, albeit with a shorter period of delay due to law office failure, the court noted that under “CPLR 2005, ‘Upon an application satisfying the requirements of subdivision (d) of section 3012..., the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay... resulting from law office failure,’ ” particularly when the delay does not prejudice the Claimant (Kalwasinski v State of New York, Ct Cl, UID #2001-011-568, Claim No. 104011, Motion No. M-63525, Aug. 1, 2001, McNamara, J.).

Accordingly, pursuant to CPLR 2005 and 3012(d), I find that the Defendant has provided a reasonable excuse for its default, and that Claimant has failed to demonstrate the existence of any prejudice directly related to such default, to wit, this claim would not have been called for trial during the 4½-month period of default, and it will not in any way delay a trial date of this claim. Prisoner pro se matters before me are scheduled based upon the date of the filing of the claim. Here, I will utilize July 23, 2003 for such purpose, and this claim shall be set for trial in due course. Accordingly, the Claimant’s motion for a default judgment is denied, and the Defendant’s cross-motion for an extension of time to file its answer is granted. The Defendant shall serve and file its proposed answer, appended as Exhibit H to the cross-motion, within 30 days of service of a file-stamped copy of this order.

February 21, 2006
Rochester, New York

Judge of the Court of Claims

  1. Decisions and selected orders of the New York State Court of Claims are available on the Internet at