New York State Court of Claims

New York State Court of Claims

PALMER v. THE STATE OF NEW YORK, #2007-030-566, Claim No. 113141, Motion No. M-73616


Synopsis


Pro se claimant’s motion for default judgment pursuant to CPLR §3215 denied. Review of clerk’s file shows claimant acknowledged receipt of an answer from the defendant, and attempted to file a reply which was returned by the clerk. Responsive pleading was served by the defendant within forty (40) days of service of the claim as required. [see 22 NYCRR §206.7 (a)].

Case Information

UID:
2007-030-566
Claimant(s):
RUSSELL D. PALMER
Claimant short name:
PALMER
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
113141
Motion number(s):
M-73616
Cross-motion number(s):

Judge:
THOMAS H. SCUCCIMARRA
Claimant’s attorney:
RUSSELL D. PALMER, PRO SE
Defendant’s attorney:
HON. ANDREW M. CUOMO, NEW YORK STATE ATTORNEY GENERAL
BY: DEWEY LEE, ASSISTANT ATTORNEY GENERAL
Third-party defendant’s attorney:

Signature date:
September 19, 2007
City:
White Plains
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read and considered on claimant’s motion for a default


judgment:

1-3 Default Judgment Under C.P.L.R. 3215; Affidavit of Facts Upon Application for Default Judgment Under C.P.L.R. 3215 by Russell D. Palmer, Claimant; Affidavit as to Default by Russell D. Palmer, Claimant and attachments

  1. Affirmation by Dewey Lee, Assistant Attorney General and attachment
5,6 Filed papers: Claim, Answer

Russell Palmer alleges in claim number 113141 that defendant’ s agents at various correctional facilities failed to provide timely and adequate medical care while he was inmate in their custody. The claim was filed in the Office of the Chief Clerk of the Court of Claims on December 26, 2006. An Answer was served on January 12, 2007 and filed with the Chief Clerk of the Court of Claims on January 16, 2007. [See Affirmation by Dewey Lee, Assistant Attorney General, ¶2].

In the sworn affidavits attached to his motion, Mr. Palmer writes that defendant has not answered his claim, that claimant has not extended the time within which to answer, and that he seeks a default judgment accordingly. These statements are belied by a review of the clerk’s file, in which not only did claimant acknowledge receipt of an answer from the defendant, but he attempted to file a Reply which was returned by the clerk.

Responsive pleadings must be served by the defendant within forty (40) days of service of the claim. [See 22 NYCRR §206.7 (a)]. Assuming service of the claim upon the attorney general’s office on or about December 26, 2006, service of the answer by January 12, 2007 was well within the prescribed time.

Accordingly, Claimant’s motion is in all respects denied.

September 19, 2007
White Plains, New York

HON. THOMAS H. SCUCCIMARRA
Judge of the Court of Claims