Claimant alleges that while he was a patient at the Creedmoor Psychiatric
Center in June, 2005, two watches were stolen from him. He seeks damages of
$10.00 for each watch, a total of $20.00. The claim was served (by certified
mail, return receipt requested) and filed on July 25, 2005. Not having received
a response to the claim within 40 days, claimant wrote a letter to the Attorney
General, dated September 11, 2005, questioning why an answer had not been
served. Defense counsel advises that, upon receipt of claimant’s letter,
an inquiry was made and it was ascertained that while the claim had in fact been
received in the Attorney General’s mailroom, it had not been transmitted
to the Claims Bureau. A copy of the claim was obtained from the clerk of the
court, and defendant then served (on October 20, 2005) and filed (on October 21,
2005) an answer.
The instant motion, in which claimant seeks a default judgment, was served on
October 19, 2005, prior to claimant receiving the answer.
Rule 206.7(a) of the Uniform Rules for the Court of Claims provides that
“service of all responsive pleadings shall be made within 40 days of
service of the pleading to which it responds.” Defendant concededly did
not comply with this rule. Rule 206.1(b) provides that, upon good cause shown
and in the interests of justice, the court may “waive compliance”
with any of the rules. However, when defendant became aware that claimant had
served and filed a claim and that the time in which to respond had expired,
defendant did not move pursuant to Rule 206.1(b) for relief from its default.
And after being served with claimant’s motion requesting a default
judgment, defendant still did not request relief from its conceded default.
Instead, defendant simply opposes the motion for a default judgment.
Although defendant cites Spickerman v State of New York (85 AD2d 60
) – holding that the Court of Claims has the discretion to deny a
claimant’s motion for a default judgment where “the default in
answering was not willful, the defaulting party moves expeditiously for relief
and the non-defaulting party is not unduly prejudiced” (id., 61)
– it is basic that before the court even considers whether to exercise its
discretion in that regard, defendant must request such relief. The court will
not grant that which defendant did not request.
Nevertheless, entry of a default judgment in the Court of Claims is not
possible, since Court of Claims Act § 12(1) 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
The sole remedy available under these circumstances is an order precluding
defendant from offering evidence as to liability but nevertheless requiring
claimant to present his proof so that the court may determine if it is
sufficient to justify a finding of liability (see Powell v State of New
York, Ct Cl, Marin, J., decision and order dated September 5, 2003, UID No.
2003-016-066; Gibson v State of New York, Ct Cl, O’Rourke, J.,
decision and order dated December 20, 2000, UID No. 2000-017-611). Also, while
a defendant’s default precludes defendant from offering evidence on
liability, it does not impair defendant’s ability to present evidence on
the question of damages (Amusement Business Underwriters v American
International Group, Inc., 66 NY2d 878, 498 NYS2d 760 ).
Accordingly, claimant’s motion is granted to the extent that the claim
will be tried on Tuesday, April 11, 2006 at 10:00 a.m. at the Court of Claims,
26 Broadway in Manhattan. At the liability portion of the trial, defendant will
be precluded from calling witnesses or offering evidence, but may cross-examine
claimant’s witnesses. Defendant’s conduct of the damages portion of
the trial will be unaffected. Claimant still must meet his burden of proof
pursuant to § 12(1) and establish the existence of evidence sufficient to
justify a finding of liability, as well as proof of damages.