|Claimant short name:||KOEHL|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||THOMAS H. SCUCCIMARRA|
|Claimant's attorney:||EDWARD KOEHL, PRO SE|
|Defendant's attorney:||HON. ANDREW M. CUOMO, NEW YORK STATE
BY: BARRY KAUFMAN, ASSISTANT ATTORNEY GENERAL
|Third-party defendant's attorney:|
|Signature date:||October 26, 2009|
|See also (multicaptioned case)|
The following papers were read and considered on the motions:
1,2 Notice of Motion; Affidavit in Support of Motion of Default (CPLR 3215) by Edward Koehl, Claimant and attached exhibits
3,4 Notice of Cross-Motion; Affirmation in Opposition to Motion for Sanctions (sic) by Barry Kaufman, Assistant Attorney General and attached exhibits
5 Opposition to Defendant's Cross Motion and Reply to Request for Default by Edward Koehl, Claimant and attached exhibits
6 Reply Affirmation by Barry Kaufman, Assistant Attorney General and attached exhibits
7 Letter from Edward Koehl, Claimant, received by the Chief Clerk September 25, 2009
8 Sur-reply Affirmation by Barry Kaufman, Assistant Attorney General
9 Opposition to Defendant's Sur-Reply by Edward Koehl, Claimant
10,11 Filed papers: Claim, Answer
In his claim Edward Koehl alleges nine causes of action premised upon allegedly invalid disciplinary proceedings and property loss and/or confiscation, occurring in February and March 2009. According to the affidavit of service filed with the claim, the Attorney General's Office was mailed the claim on May 18, 2009, and the claim was filed in the Office of the Chief Clerk of the Court of Claims on May 26, 2009. The claim was served on the Attorney General's Office on May 22, 2009. [See Affirmation in Opposition by Barry Kaufman, Exhibit 1]. An answer was filed on July 6, 2009 and, according to the affidavit of service filed with the answer, as well as the papers submitted on defendant's cross-motion, the answer was served by mail on July 2, 2009.
The claimant's motion for "an Order of Default" was served(1) on defendant on or about July 28, 2009, filed in the Office of the Chief Clerk on August 7, 2009, and originally marked for submission on September 2, 2009. Defendant sought and was granted an adjournment to the Court's next motion date on September 16, 2009, and was granted a further extension for submission of a cross-motion. The Court marked both motions for submission on October 7, 2009.
Court of Claims Act §11(a) provides that "[t]he claim shall be filed with the clerk of the court; . . . a copy shall be served upon the attorney general within the times hereinbefore provided [see Court of Claims Act §10] for filing with the clerk of the court either personally or by certified mail, return receipt requested, . . ." and service is complete when it is received in the Attorney General's Office, not simply upon mailing. Court of Claims Act §11(a)(i). Claimant has furnished proof of service of the claim by certified mail, return receipt requested, on May 22, 2009, in that he has included a photocopy of the return receipt with the dated stamp by the Attorney General's Office. [See Affidavit in Support of Motion of Default by Edward Koehl, Exhibit 2]. Receipt on that date is also confirmed in the papers submitted on defendant's cross-motion. Having been served with a claim on May 22, 2009, defendant was required to either make a pre-answer motion, or serve a responsive pleading within forty (40) days. See 22 NYCRR §206.7(a); Civil Practice Law and Rules §3211(f).
Defendant failed to serve either a pre-answer motion to dismiss or answer within the required time period of forty (40) days from service of the claim, and no extension was apparently sought or granted. As noted above, however, an answer was served on claimant on the 41st day, and such answer was filed in the Office of the Chief Clerk of the Court of Claims on July 6, 2009.
No default judgment per se may be entered against the State of New York because liability may not be implied against the State of New York. [Court of Claims Act §12(1)(2) ]; see Mabry v State of New York, UID # 2007-029-050, Claim No. 110024, Motion No. M-74215 (Mignano, J., November 28, 2007); Gibson v State of New York, UID # 2000-017-611, Claim No. 101212, Motion No. M-61208 (O'Rourke, J., December 20, 2000)]. Additionally, no judgment may be awarded to a claimant where the statute of limitations would prevent recovery against anyone other than the State of New York. [Court of Claims Act §12(2)].
Defendant has now served and filed a cross-motion seeking an order compelling acceptance of the answer already served, granting leave to serve and file an amended/ supplemental answer and, alternatively, dismissal of the claim.
Under Civil Practice Law and Rules §3012(d) the Court may exercise its discretion to compel such acceptance, "upon such terms as may be just and upon a showing of reasonable excuse for delay or default." In terms of excuse, defendant offers the affidavit of Joann Mylod, a secretary in the Poughkeepsie Regional Office of the Attorney General, who describes the manner in which the office processes claims received in the Poughkeepsie office from the Claims Office in Albany. [See Affirmation in Opposition by Barry Kaufman, Exhibit 3]. What is described is essentially law office failure [see Civil Practice Law and Rules §2005(3) ], in both the delay in transmitting the claim from the central office to the regional office, and the delay by the investigation unit of the regional office in returning the claim to the attorney assigned to its defense. Because the claim was misplaced, no internal office file for the claim was ever made until one day after the period within which to serve an answer had expired. Ms. Mylod remarks that this misplacement of a claim is rare, and that she could not recall any other occasion where a deadline for answering a claim was missed as a result. [See Affirmation in Opposition by Barry Kaufman, Exhibit 3].
As to a meritorious defense, in addition to repeating denial of the essential allegations of the claim, defendant sets forth the general bases for the eleven defenses raised. No affidavit of merit other than the verified pleading itself is included.
Claimant's assertions that he is prejudiced by the one day delay because of his current medical issues do not address the issue of prejudice in the civil sense. Moreover, claimant has largely not addressed substantive matters raised in defendant's cross-motion, focusing instead on perceived deficits in the timing of the motion practice. Any such deficits were rendered moot by the Court's choice to allow both parties sufficient time to respond by adjourning the motions for submission on October 7, 2009. Claimant did not request additional time thereafter.
Where a defendant "adequately demonstrate[s] a reasonable excuse for its default, . . . its delay in answering was brief, was neither deliberate nor willful, and did not prejudice the [claimant] (see Greene v Mullen, 39 AD3d at 469-470; Whitfield v State of New York, 28 AD3d 541, 542  . . .", a motion to compel acceptance of the answer may be appropriately granted, especially in view of the strong public policy favoring resolution of matters on the merits, and the assertion of a "potentially meritorious defense." See Altairi v Cineus, 45 AD3d 707, 708 (2d Dept 2007); cf. Montgomery v Cranes, Inc., 50 AD3d 981 (2d Dept 2008). Indeed, where a time delay has been minimal, the default is not willful, and the claimant is not prejudiced, and a verified pleading(4) is included with the moving papers, no additional affidavit of merit has been required. See Bardi v Warren County Sheriff's Dept.,194 AD2d 21, 24-25 (3d Dept 1993).
With regard to this claim, the one day delay between when service of the answer was required, and when the answer was actually served, is certainly minimal, the default was clearly not willful, and claimant was not prejudiced. The defendant has shown reasonable excuse for the delay, and has described the prompt efforts made to serve the pleading when the error was discovered. As required, the defenses raised in the verified pleading give adequate notice to the claimant of issues of law or fact that the defendant may raise at trial or in later motion practice. See Civil Practice Law and Rules §3018(b); Cipriano v City of New York, 96 AD2d 817 (2d Dept 1983).
Defendant also seeks leave to serve its amended/supplemental answer adding an additional res judicata/collateral estoppel defense pursuant to Civil Practice Law and Rules §3025(b), or, alternatively, for dismissal of the claim based upon a failure to state a cause of action and res judicata and collateral estoppel. See Civil Practice Law and Rules §§3211(a)(5) and (7). In this regard, defendant notes that after the answer was served herein, the Supreme Court, Dutchess County dismissed claimant's Article 78 proceeding challenging the inmate hearing underlying the present claim on July 13, 2009. [See Affirmation in Opposition by Barry Kaufman, ¶17, Exhibit 7]. The proposed amended/supplemental answer adds the res judicata/collateral estoppel defenses. [See Ibid. Exhibit 8]. "An amendment is something that makes any change at all in a pleading, including the addition of facts and claims that were even in existence in time for inclusion in the original pleading. A 'supplement' seeks to add to the pleading a claim or matter that only came into being, or into the pleader's knowledge, after the original pleading was served." [Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3025:9; §3025 Civil Practice Law and Rules]. A copy of the proposed amended pleading should generally be included, as well as any factual affidavits or exhibits that ". . . unequivocally make out a prima facie basis for the . . . matter now sought to be added . . . " [Commentary CPLR C3025:11; § 3025 Civil Practice Law and Rules].
As noted above, a copy of the proposed supplemental answer has been appended as required. [See Affirmation in Opposition by Barry Kaufman, Exhibit 8]. After careful review of same and in consideration of the applicable law, the Court finds that there would be no prejudice to claimant in allowing such supplemental answer; that supplementing the answer would not affect the orderly prosecution of the action; there was no undue delay in seeking to add the new allegations; and the proposed supplement is not palpably improper or insufficient as a matter of law.
Based on the foregoing, claimant's motion [M-77062] for a default is in all respects denied, and defendant's cross-motion [CM-77177] is granted to the extent that the answer served on July 2, 2009 is deemed timely, and the defendant may serve and file its supplemental answer within thirty (30) days of the filing of this decision and order, without prejudice to any subsequent motion to dismiss based upon defenses asserted therein.
October 26, 2009
White Plains, New York
THOMAS H. SCUCCIMARRA
Judge of the Court of Claims
1. A motion is "made when a notice of the motion . . . is served." Civil Practice Law and Rules §2211; see also Jenkins v State of New York, 119 Misc 2d 144, 145 (Ct Cl 1983).
2. ". . . 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. "Upon an application satisfying the requirements of subdivision (d) of section 3012 or subdivision (a) of rule 5015, the court shall not, as a matter of law, be precluded from exercising its discretion in the interests of justice to excuse delay or default resulting from law office failure."
4. Civil Practice Law and Rules §105(u) provides generally that a verified pleading may be utilized in lieu of an affidavit.