New York State Court of Claims

New York State Court of Claims

GILL v. THE STATE OF NEW YORK, #2007-015-211, Claim No. 112597, Motion Nos. M-73106, CM-73241


Claimant's motion for a default judgment was denied.

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:
Anthony G. Gill, Pro Se
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Saul Aronson, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
July 9, 2007
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, moves for a default judgment against the defendant for its alleged failure to appear and serve an answer to the claim. The defendant cross-moves for an order compelling the acceptance of its answer pursuant to CPLR § § 317, 2005, 3012(d) and 5015. The claim arises from the contention that beginning May 18, 2006 and at various times thereafter the claimant was exposed to cigarette smoke when he was moved to cell location B-8-3 at Great Meadow Correctional Facility. He alleges that various correction officers smoked at the nearby officers' post in violation of the applicable rules, regulations and policies of the Department of Correctional Services.

The claim was filed with the Clerk of the Court and served upon the Attorney General by certified mail, return receipt requested, on August 3, 2006 (see claimant's Exhibit A). The defendant failed to appear or otherwise answer the claim resulting in the filing of the instant motion for a default judgment on March 26, 2007. As of the date of the claimant's motion, the defendant had been in default for approximately six months (see 22 NYCRR § 206.7[a]).

To successfully oppose a motion for leave to enter a default judgment upon the defendant's failure to answer the claim, the defendant was required to demonstrate a reasonable excuse for the default and a meritorious defense (MMG Design, Inc. v Melnick, 35 AD3d 823 [2006]; Drucker v Ward, 293 AD2d 891 [2002])[1].

In opposition to the claimant's motion and in support of its cross-motion to compel acceptance of its answer the defendant asserts that the claimant instituted "a companion action alleging similar allegations against individual State employees in Supreme Court, Washington County". Confusion within the Office of the Attorney General allegedly resulted in service of an answer only in the related Supreme Court matter. The Court finds the defendant's excuse for the default, which is tantamount to law office failure, to be reasonable under the circumstances (see CPLR 2005; Watson v Pollacchi, 32 AD3d 565 [2006]).

In support of the contention that the State has a meritorious defense to this action, affidavits from the four correction officers alleged to have been smoking in the vicinity of the claimant's cell were submitted. All of these officers deny that they smoked cigarettes near the claimant's cell as alleged in the claim.

In opposition to the defendant's cross-motion to compel the acceptance of its answer, the claimant failed to establish that he would suffer prejudice in the event the defendant's application was granted. Considering the defendant's reasonable explanation for the default, the absence of prejudice to the claimant, the existence of a potentially meritorious defense, and the strong public policy in favor of resolving cases on the merits, the claimant's motion for the entry of a default judgment is denied and the defendant's cross-motion to compel the claimant to accept the late service of its answer pursuant to CPLR 3012(d) is granted (Jeffrey L. Rosenberg & Assoc., LLC v Lajaunie, 35 AD3d 668 [2006]. Defendant is directed to file and serve an answer within thirty days of the date this Decision and Order is filed with the Clerk of the Court.

July 9, 2007
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated February 21, 2007;
  2. Affidavit of Anthony G. Gill sworn to March 21, 2007 with exhibits;
  3. Amended notice of cross-motion dated April 23, 2007;
  4. Affirmation of Saul Aronson dated April 23, 2007 with exhibits;
  5. Opposition to defendant's cross-motion sworn to April 25, 2007 with exhibit.

[1]. Where the delay in answering a complaint or claim is of brief duration, which is not the case here, it has been held that an affidavit of merit is unnecessary (see e.g Aabel v Town of Poughkeepsie, 301 AD2d 739 [2003]; but see Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353 [2005].)