New York State Court of Claims

New York State Court of Claims

DAVIS v. THE STATE OF NEW YORK, #2009-032-129, Claim No. 114692, Motion Nos. M-76174, M-76280


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-76174, M-76280
Cross-motion number(s):

Claimant’s attorney:
Samuel Davis, Pro Se
Defendant’s attorney:
Hon. Andrew M. Cuomo, NYS Attorney GeneralBy: Roberto Barbosa, Assistant Attorney General, Of Counsel
Third-party defendant’s attorney:

Signature date:
June 30, 2009

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant, an inmate proceeding pro se, has filed two motions with respect to the above captioned claim. The first motion (M-76174) seeks an order setting a trial date; the second (M-76280) seeks a default judgment. For the reasons set forth below, both motions are denied.

The underlying claim, which was filed on January 10, 2008, seeks recovery from defendant for alleged assault and battery by correction officers at Southport Correctional Facility in October 2007.

Motion No. M-76174
In support of his motion, claimant states that he would like the court to schedule a trial date as soon as possible because he is “moving [the] case forward in attempting to alleviate any/all continuous recurrences of violations of [his] rights” (Davis Affidavit). Defendant opposes the motion on the basis that prisoner pro se trials fall within the discretion of the court and claimant has not alleged anything that could be construed as a motion for trial preferences. The Court agrees.

Claimant has failed to set forth any facts to suggest that his claim falls into any of the cases which would be entitled to a trial preference pursuant to CPLR 3403 (a). Unless inmate pro se claims qualify for a preference, they are tried at the facility at which the claim accrued or a nearby correctional facility. They are held at regularly scheduled prison terms in the order in which the claims are filed. Claimant will be notified by mail as to the date and place of his trial when it is scheduled.

Accordingly, claimant’s motion seeking a trial date is denied.
Motion No. M-76280

Claimant seeks entry of a default judgment based upon defendant’s alleged failure to direct correspondence to claimant at his correct address, thereby limiting claimant’s time to timely respond. In support of his motion, claimant annexes copies of correspondence directed to him at Sing Sing Correctional Facility, instead of Southport Correctional Facility where he is presently incarcerated.

Defendant opposes the motion on the basis that claimant has failed to show that defendant has failed to appear, plead or proceed to trial, or that defendant has neglected to proceed. The Court agrees.

CPLR § 3215 (a) states, as follows: “When a defendant has failed to appear, plead or proceed to trial of an action reached and called for trial, or when the court orders a dismissal for any other neglect to proceed, the plaintiff may seek a default judgment against him.”

Accordingly, despite what appears to be an oversight on the part of defendant, with respect to the address to which he directed correspondence to claimant, the court finds that claimant has failed to allege or prove any default on the part of defendant.

Accordingly, claimant’s motion for a default judgment is denied.

June 30, 2009
Albany, New York

Judge of the Court of Claims

Papers Considered:

Motion No. M-76174

1. Notice of Motion and Affidavit of Claimant in Support of Motion to Set a Trial Date, dated January 14, 2009;
2. Affirmation in Opposition to Claimant’s Motion to Set a Trial Date, dated March 16, 2009.

Motion No. M-76280

1. Notice of Motion For Entry of Default, and Affidavit of Samuel Davis, dated January 28, 2009;

2. Affirmation in Opposition to Claimant’s Motion for Default Judgment, dated March 16, 2009.