New York State Court of Claims

New York State Court of Claims

BEST v. STATE OF NEW YORK, NEW YORK STATE POLICE, STATE POLICEMEN (BRIAN FREY, MICHAEL COLLOTON) IN THEIR INDIVIDUAL AND/OR OFFICIAL CAPACITY, #2009-038-543, Claim No. 115915, Motion No. M-76231


Synopsis


Claimant’s motion for default judgment denied. Defendant timely served answer within 40 days after service of claim (22 NYCRR § 206.7[a]).

Case Information

UID:
2009-038-543
Claimant(s):
TIMOTHY BEST
Claimant short name:
BEST
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK, NEW YORK STATE POLICE, STATE POLICEMEN (BRIAN FREY, MICHAEL COLLOTON) IN THEIR INDIVIDUAL AND/OR OFFICIAL CAPACITY
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
115915
Motion number(s):
M-76231
Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
TIMOTHY BEST, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Paul F. Cagino, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
May 18, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant filed the instant claim on October 3, 2008, seeking compensation for injuries claimed to result from an allegedly false arrest by State Troopers Brian Frey and Michael Colloton. Claimant moves for a default judgment against defendants State of New York, New York State Police and Troopers Frey and Colloton, asserting that defendants’ answer was not timely served. At the threshold, the Court notes that the only defendant over which this Court has jurisdiction is the State of New York (see Court of Claims Act § 9). The New York State Police, an agency of the State, and the individual troopers are not properly named as separate parties in this claim (see Sherman v State of New York, et al., UID # 2003-010-014, Claim No. 103393, Motion No. M-66094, Ruderman, J. [May 13, 2003]; see also Smith v State of New York, 72 AD2d 937, 938 [4th Dept 1979] [“the jurisdiction of the Court of Claims is limited and does not extend to claims against individuals”]). Accordingly, because these named parties are not properly before the Court, any alleged default by them is of no moment. The caption of this claim will be amended, sua sponte, to reflect the State of New York as the sole proper defendant.

Claimant argues that defendant was in default because it did not file and serve an answer to the claim within 20 days after it was served by claimant (see Best Affirmation, ¶ 4, Best Affirmation in Reply, ¶ 7). However, an answer to a claim against the State is timely if it is served “within 40 days of service of the pleading to which it responds” (22 NYCRR § 206.7[a]; see Palmer v State of New York, UID # 2007-030-566, Claim No. 113141, Motion No. M-73616, Scuccimarra, J. [Sept. 19, 2007]). Here, claimant has demonstrated that the claim was personally served on the New York City Office of the Attorney General on October 22, 2008 (see Certificate of Service of Kevin McCormick, dated Oct. 22, 2008).[1] Thus, defendant’s time within which to serve a responsive pleading ran until December 1, 2008.[2] Defendant asserts, and claimant acknowledges, that the answer to the claim was served November 14, 2008 (see Affirmation in Opposition of Paul F. Cagino, AAG, dated Feb. 9, 2009; Affidavit of Service of Ellen Lyons, sworn to November 14, 2008 [Appended to Filed Verified Answer]; “Affirmation” in Reply and to Strike Defendant’s Answer of Timothy Best, “Affirmed” Feb. 12, 2009). Thus, the verified answer was timely served whether measured by the October 22, 2008 date of service or the October 30, 2008 date of service, and claimant’s motion is without merit. Accordingly, it is

ORDERED, that Motion No. M-76231 is DENIED in all respects.

May 18, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims


Papers considered
:


(1) Claim No. 115915, filed October 3, 2008;

(2) Verified Answer, filed November 17, 2008;

(3) Affidavit of Service of Ellen Lyons, sworn to November 14, 2008;

(4) Notice of Motion, filed February 6, 2009;

(5) “Affirmation of Default” of Timothy Best, “affirmed” January 23, 2009;

(6) “Affirmation of Facts Constituting the Claim, Default and the Amount Due”,

“affirmed” January 23, 2009;
(7) Affirmation in Opposition of Paul F. Cagino, AAG, dated February 9, 2009, with exhibits A-B;

(8) “Affirmation in Reply and to Strike Defendant’s Answer” of Timothy Best, “affirmed”

February 12, 2009, with Exhibits 1-4 including Sheriff’s Certificate of Service on Corporation,

Partnership or Governmental Subdivision of Deputy Sheriff Kevin McCormick, dated

October 22, 2008, and Affidavit of Service of Deputy James Sutter, undated.



[1].Defendant acknowledges receipt of service of the claim in its Poughkeepsie office on October 30, 2008 (see Affirmation in Opposition of Paul F. Cagino, AAG, dated Feb. 9, 2009, ¶ 3; see also Affidavit of Service of Deputy James Sutter, undated).
[2].Use of the October 30, 2008 date of service would run defendant’s time to answer to December 9, 2008.