New York State Court of Claims

New York State Court of Claims

PAYNE v. THE STATE OF NEW YORK, #2008-015-082, Claim No. 114216, Motion No. M-75231


Defendant's motion to compel acceptance of its answer was denied with leave to renew where it failed to establish a meritorious defense to the action.

Case Information

1 1.The caption is amended sua sponte to reflect the only properly named defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption is amended sua sponte to reflect the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
Daren Payne, Pro SeNo Appearance
Defendant’s attorney:
Honorable Andrew M. Cuomo, Attorney General
By: Paul F. Cagino, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
November 12, 2008
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant moves to compel acceptance of its answer pursuant to CPLR 3012 (d). The instant claim was filed on September 11, 2007 and served on September 18, 2007. Defense counsel asserts that receipt of the claim was overlooked because it was included in papers which appeared to relate to a motion on a separate claim (Claim No. 114087) asserted by the same claimant. In this regard the defendant points to the fact that the claim was served with a cover letter bearing Claim Number 114087 which stated the claimant’s intention to “File Motion of Exhibits against the State of New York” and referred to the submission of the enclosed “Motion of Exhibits” (defendant's Exhibit A). The notice of intention to file a claim and the claim in the instant matter were enclosed in the package of papers addressed by the cover letter. At the bottom of the first page of the enclosure, which was the Notice of Intention, appeared the handwritten designation “Exhibits”.

By letter dated October 4, 2007, defendant received correspondence from the Court of Claims indicating the instant claim had been filed with the Court. Defense counsel avers, however, that there was no record that the claim had been served because it had been misfiled as part of the papers relating to Claim Number 114087.

Pursuant to CPLR 3012 (d) the court may extend the time to answer or compel the acceptance of a pleading “upon such terms as may be just and upon a showing of reasonable excuse for delay or default.” This section generally requires a party seeking to compel the acceptance of an untimely answer to establish a reasonable excuse for default and a meritorious defense to the action (Lipp v Port Auth. of N.Y. & N.J., 34 AD3d 649 [2006]; Juseinoski v Board of Educ. of City of N.Y., 15 AD3d 353, 356 [2005]; Dawson v Suburban Sales & Serv., 267 AD2d 733 [1999]). Public policy favors resolution of cases on the merits and the trial court is vested with broad discretion to permit late service of a pleading where there is an absence of willfulness or prejudice to the opposing party (Giacopelli v Guiducci, 36 AD3d 853 [2007]; Huckle v CDH Corp., 30 AD3d 878 [2006]; Drucker v Ward, 293 AD2d 891 [2002]; Dawson v Suburban Sales & Serv., supra). That discretion is not unlimited, however, and a party’s failure to establish the potential merit of a claim or defense generally requires denial of a motion requesting relief from a default regardless of the reasonableness of the excuse for the delay (Amodeo v Gellert & Quartararo, P.C., 26 AD3d 705 [2006]).

An exception to the rule requiring a showing of merit is recognized where the delay in pleading is brief. In such circumstances it has been held that “CPLR 3012 (d) does not require an affidavit of merit as a precondition to obtaining relief where . . . the delay is of relatively short duration” and the opponent of the motion failed to demonstrate either that the default was willful or that they were prejudiced thereby (Aabel v Town of Poughkeepsie, 301 AD2d 739, 740 [2003]; see also Ayres Mem. Animal Shelter, Inc. v Montgomery County Socy. for Prevention of Cruelty to Animals, 17 AD3d 904 [2005], lv dismissed 5 NY3d 824 [2005]; Planck v SUNY Bd. of Trustees, 18 AD3d 988 [2005]). In determining whether or not a pleading delay is of sufficiently brief duration so as to enable a court to dispense with the showing of merit, reference to appellate authority provides guidance. In Amodeo v Gellert & Quartararo, P.C., supra, the Appellate Division, Third Department, held that a pleading delay of 35 days is sufficiently long to require a demonstration of the merits of the claim (see also Stout v Heyer, 40 AD3d 743 [2007] [3-month delay in pleading was not so trivial as to dispense with the requirement of an affidavit of merit]; Manhattan King David Rest. v Nathanson, 269 AD2d 297 [2000] [2 ½-month delay in pleading sufficiently long to require showing of merit]; Hommell v Albany Med. Ctr. Hosp., 209 AD2d 772 [1994] [30-day delay in pleading sufficiently long to require a showing of merit]). In the case at bar the defendant’s answer to the claim was due on October 29, 2007 (see Uniform Rules for the Court of Claims §206.7) and defendant’s motion to compel the acceptance of its answer was not filed until July 10, 2008, almost nine months later. Thus, the defendant’s delay in answering was not sufficiently brief so as to permit this Court to dispense with the showing of a meritorious defense to this action.

Undoubtedly, the defendant established a reasonable excuse for its delay in answering the claim (see CPLR 2005). The cover letter that was sent with the claim referenced the claim number of another claim and appeared to relate to motion practice. However, on the motion herein the defendant has failed to address the merits of either the claim or the defenses thereto. As a result, the Court is constrained to deny the defendant’s motion to compel acceptance of its answer. However, upon consideration of the claimant's lack of opposition to the motion, the Court will grant defendant leave to renew its application upon an appropriate showing of a meritorious defense to this action.

For the foregoing reasons, defendant’s motion to compel acceptance of its answer is denied with leave to renew in accordance with this Decision and Order.

November 12, 2008
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated July 10, 2008;
  2. Affirmation of Paul F. Cagino dated July 10, 2008 with exhibits.