New York State Court of Claims

New York State Court of Claims

DEAN v. THE STATE OF NEW YORK, #2008-009-033, Claim No. 114096, Motion No. M-75539


Synopsis


Claimants’ motion to compel, to strike the answer of the defendant, and for default judgment was granted in part.

Case Information

UID:
2008-009-033
Claimant(s):
JENNIFER A. DEAN, Individually and as Co-Administrator of the Estate of Bethany P. Dean; and SCOTT J. DEAN, Individually and as Co-Administrator
of the Estate of Bethany P. Dean
Claimant short name:
DEAN
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
114096
Motion number(s):
M-75539
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
LOWENTHAL & ABRAMS, P.C.
BY: Esther M. Gallagher, M.D., J.D., Of Counsel.
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Michael R. O’Neill, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
December 9, 2008
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimants have brought this motion seeking an order compelling the defendant to respond to their various discovery demands and their Demand for a Bill of Particulars, and further seek an order striking the Answer of the defendant and directing entry of a default judgment as to liability should defendant fail to timely respond to these demands.

The following papers were considered by the Court in connection with this motion:
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 Particulars.

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 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 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.


December 9, 2008
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims