New York State Court of Claims

New York State Court of Claims

RISCH v. THE STATE OF NEW YORK, #2009-009-012, Claim No. 116190, Motion Nos. M-76203, M-76306


Synopsis


Defendant’s motion seeking an extension of time to serve and file its answer was granted; claimant’s motion for a default judgment or striking the proposed answer was denied.

Case Information

UID:
2009-009-012
Claimant(s):
JAMES A. RISCH
Claimant short name:
RISCH
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
116190
Motion number(s):
M-76203, M-76306
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant’s attorney:
JAMES A. RISCH, Pro Se
Defendant’s attorney:
HON. ANDREW M. CUOMO
Attorney General
BY: Joel L. Marmelstein, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant’s attorney:

Signature date:
June 2, 2009
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)


Decision

Defendant has brought a pre-answer motion (M-76203) seeking an extension of time to serve and file its answer to this claim. Claimant has responded with his motion (M-76306) seeking an order granting him a default judgment, or in the alternative, an order striking the proposed answer submitted by defendant with Motion No. M-76203. For purposes of judicial economy, these motions will be considered together.

The following papers were considered by the Court in connection with these motions:
Notice of Motion, Affirmation in Support, with Exhibits (M-76203) 1,2


Notice of Motion, Affidavit in Support, with Exhibit (M-76306) 3, 4

Affirmation in Opposition, with Exhibit (M-76306) 5

As set forth in the Affirmation in Support of defendant’s motion (M-76203), the claim in this matter was served upon the Attorney General at the Utica Regional Office by certified mail, return receipt requested, on December 8, 2008 (Exhibit B to Items 1, 2). Pursuant to § 206.7 of the Uniform Rules for the Court of Claims, the defendant was required to serve and file its answer to this claim within 40 days of service, or in this case by January 17, 2009. Due to an error in the processing of this claim at the Utica Regional Office, an answer was not timely served and filed, and defendant’s attorney immediately instituted this motion seeking relief on January 26, 2009, nine days after the answer was due.

Pursuant to CPLR § 2004, a court may, upon good cause shown, extend the time fixed by any statute, rule or order for doing any act upon such terms as may be just and upon good cause shown. It has been held that when a default in answering is not willful, the non-defaulting party is not unduly prejudiced, and the defaulting party moves expeditiously for relief, a court has discretion to permit the interposition of an answer (Santos v City of New York, 269 AD2d 585; Spickerman v State of New York, 85 AD2d 60).

In this particular matter, the Court finds that defendant’s default was not in any manner willful, and that the minimal delay in filing and serving an answer will not cause any prejudice whatsoever to the claimant. Furthermore, it is apparent to this Court that the defendant moved expeditiously for relief in this matter. Accordingly, based upon good cause having been established to the satisfaction of this Court, defendant is granted permission to serve and file an answer to this claim.

Based on this determination, claimant’s motion (M-76306) seeking a default judgment or striking the proposed answer has been rendered moot. Additionally, the Court notes that claimant’s motion was only made after claimant had been served with defendant’s motion herein, leading the Court to believe that claimant was not even aware of defendant’s default until that time.

The Court also notes that pursuant to Court of Claims Act § 12(1), a judgment may not be entered against the State “except upon such legal evidence as would establish liability against an individual or corporation in a court of law or equity”. A default judgment is therefore not an available remedy to claimant under these circumstances.

Accordingly, and based upon the foregoing, it is

ORDERED, that defendant’s Motion No. M-76203 is hereby GRANTED; and it is further

ORDERED, that defendant may serve and file its Answer to this claim within 40 days from the filing date of this Decision and Order; and it is further

ORDERED, that claimant’s Motion No. M-76306 is hereby DENIED as moot.

June 2, 2009
Syracuse, New York

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