Motion for default judgment was denied.
|Claimant short name:||DRISCOLL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :||The caption has been amended to reflect that the sole properly named defendant is the State of New York.|
|Judge:||Alan C. Marin|
|Claimant's attorney:||Michael Driscoll, Pro Se|
|Defendant's attorney:||Andrew M. Cuomo, Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 19, 2009|
|See also (multicaptioned case)|
Claimant Michael Driscoll moves for a default judgment in his favor on the ground that the State of New York has failed to answer his claim, which was filed on October 20, 2008. To the extent that Driscoll's claim can be discerned, he appears to complain of the handling of his divorce proceedings in Supreme Court.
It is unclear whether defendant, who did not respond to this motion, was in fact served with the claim in this case. Mr. Driscoll does not state in his motion papers that he served defendant, but rather states merely that "time has elapsed exceeding 30 days of acknowledgement of this claim . . ." In the court's file, the claim itself is not accompanied by an affidavit of service, although a different submission made by claimant the same day he filed his claim contains an affidavit of service stating that "the attached lawsuit & claim" was delivered to the "New York State Attorney General Litigation Unit, 120 Broadway, NY 10271, 24th Floor, Charles Sanders."
In any event, a default judgment against the State of New York is not permitted in the Court of Claims; a judgment against the State may be obtained only if a claimant proves the elements necessary to a valid cause of action.(2)
In the instant case, given that Driscoll's claim apparently arises from his divorce proceedings, such may not be the kind of case that the Court of Claims has jurisdiction to hear. Moreover, there may be other legal barriers to this claim. See, e.g., Rosenstein v State of New York, 37 AD3d 208, 829 NYS2d 93 (1st Dept 2007).
Accordingly, having reviewed the submissions(3) , IT IS ORDERED that motion no. M-76366 be denied.
May 19, 2009
New York, New York
Alan C. Marin
Judge of the Court of Claims
2. Section 12.1 of the Court of Claims Act provides that "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."
3. The court reviewed claimant's motion submission filed on February 26, 2009.