Notice of Motion, Attorney Affidavit, with Exhibits 1,2
Prior to the return date of this motion, the Court received a separate
communication from each counsel that they had agreed and stipulated to the
relief sought by claimants in this motion.
Based on this understanding between counsel, this Court will therefore grant
claimants’ request and issue an order compelling the defendant to provide
responses to claimants’ discovery demands and their Demand for a Bill of
As indicated herein, however, claimants have also requested a conditional order
striking the Answer of the defendant and directing the entry of a default
judgment against the State on the issue of liability.
However, the Court of Claims Act prohibits the entry of a default judgment
against the State. Specifically, § 12(1) of the Court of Claims Act
“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 equity.”
Therefore, based on the understanding between counsel, should defendant fail to
provide responses to claimants’ discovery demands and Demand for a Bill of
Particulars, defendant’s Answer will be stricken, and defendant will be
barred from presenting any proof at the time of trial pertaining to the
liability aspect of this claim.
However, pursuant to § 12(1), a judgment may only be entered after
claimants submit such evidence sufficient to establish a prima facie case
of liability against the State, and an inquest as to liability will be required
prior to the entry of any judgment. Should such an inquest be necessary,
defendant will be permitted to cross-examine claimants’ witnesses, but
will be precluded from offering any evidence, testimonial or documentary, on the
issue of liability.
Lastly, should claimants then prevail on the issue of liability,
defendant’s right to fully contest the issue of damages shall not be
affected by this decision (Amusement Business Underwriters v American
International Group, Inc., 66 NY2d 878).
Based on the foregoing, therefore, it is
ORDERED, that Motion No. M-75539 is hereby GRANTED, to the extent provided
herein; and it is further
ORDERED, that defendant is hereby directed to provide responses to
claimants’ discovery demands and their Demand for a Bill of Particulars,
and to serve these responses within 30 days from the service of a copy of this
order by claimants upon defendant; and it is further
ORDERED, that in the event defendant fails to timely provide such responses as
required by this order, the Answer of the defendant will be stricken, and
defendant shall be precluded from offering any evidence, testimonial or
documentary, as to the issue of liability.