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
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
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.