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
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
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
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
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
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
(Ct Cl, UID #2004-031-140, Claim No. 105897, Motion No. M-68119, Nov.
, summarized the law and the judicial
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.