Claimant's motion for a default judgment upon defendant's failure to answer the claim denied. Claimant failed to establish by proof in evidentiary form that he served the Attorney General with the claim.
|Claimant(s):||KEVIN DAVIS 07-A-5542|
|Claimant short name:||DAVIS|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||KEVIN DAVIS, Pro se|
|Defendant's attorney:||No Appearance|
|Third-party defendant's attorney:|
|Signature date:||November 27, 2018|
|See also (multicaptioned case)|
Claimant, an individual incarcerated in a State correctional facility, filed this claim on April 3, 2017 alleging that he was wrongfully confined in keeplock at Green Haven Correctional Facility between September 25, 2016 and October 8, 2016. Claimant moves pursuant to CPLR 3215 for a default judgment. Defendant has submitted no papers on the motion.
CPLR 3215 (a) provides that a plaintiff may move for default judgment where a defendant has failed to serve an answer to pleading. A motion for default judgment shall include "proof of service of the summons and the complaint, or a summons and notice served pursuant to [CPLR 305 (b) and 316 (a)]" (CPLR 3215 [f]). As pertinent to this claim, the Court of Claims Act requires that a claim must be served upon the Attorney General, and if it is served by mail, it must be accomplished by certified mail, return receipt requested (CMRRR), and that "[s]ervice by [CMRRR], upon the attorney general shall not be complete until the claim . . . is received in the office of the attorney general" (Court of Claims Act § 11 [a] [i] [emphasis added]).
This is claimant's second motion seeking a default judgment against defendant (see Davis v State of New York, UID No. 2018-038-554 [Ct Cl, DeBow, J., June 19, 2018]). As stated in the Court's prior decision:
"The weight of precedent provides that a default judgment cannot be granted against the State in the Court of Claims (see Massiah v State of New York, UID No. 2018-053-503 [Ct Cl, Sampson, J., Jan. 8, 2018]; Galunas v State of New York, UID No. 2016-044-567 [Ct Cl, Schaewe, J., Dec. 14, 2016]; Antonetti v State of New York, UID No. 2009-030-527 [Ct Cl, Scuccimarra, J., Apr. 29, 2009]; but see 247-59 W., LLC v State of New York, 27 Misc 3d 570 [Ct Cl 2010] [Court of Claims Act § 12 (1) does not preclude granting of default judgment against the State]; Whitfield v State of New York, 28 AD3d 541 [2d Dept 2006]). Even assuming that a judgment of default could be had, claimant has not provided adequate proof that the claim was served on the Attorney General as required by the Court of Claims Act. The "Affidavit of Service By Certified Mail" that was filed with the Clerk of the Court avers that on March 28, 2017 claimant served the claim by mailing it to "ATTICA CORRECTIONAL FACILITY 639 Exchange Street Attica, New York 14011-0149" (Affidavit of Service, sworn to March 28, 2017). This affidavit does not raise a presumption of proper service because it does not state that the claim was served by CMRRR or that it was served on the Attorney General, which completes service (see Court of Claims Act § 11 [a] [i]; see also Lee v. State of New York, UID No. 2015-018-624 [Ct Cl, Fitzpatrick, J., June 4, 2015]). Although claimant avers in his "affirmation" in support that "a true copy of [the claim] was served upon the State Attorney General Office [sic] also on April 17, 2017, via by [sic] [CMRRR]" (Davis Affirmation, ¶ 2), he has not submitted any certified mail receipt green cards or other proof demonstrating that the claim was received by the Office of the Attorney General."
(id.). In support of the instant motion, claimant again submits an unsworn affirmation in which he avers that he served the claim upon the Attorney General on April 17, 2017 by CMRRR (Davis Affirmation, ¶ 2), which lacks evidentiary value.(1) Further, in an unsworn document attached to his affirmation, which also lacks evidentiary value, claimant asserts that he served the claim on March 9, 2018 (see id., Exhibit A [Undated Submission Captioned with Motion No. M-91970]), and submits a green card receipt bearing certified mail number "7008 0500 0001 7383 4538" that is stamped received by the Office of the Attorney General on March 9, 2018. Thus, inasmuch as claimant has failed to establish that the claim was received by the Attorney General, he has failed to demonstrate that he has served the claim.
Accordingly, it is
ORDERED, that claimant's motion M-92774 is DENIED.
November 27, 2018
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
(1) Notice of Motion, dated August 2018 [sic];
(2) Affirmation of Kevin Davis in Support of Motion for Default Judgment, executed August
2018 [sic], with Exhibit A;
(3) Notice of Motion, dated September 9, 2018, with Exhibit A;
(4) Affidavit of Service, sworn to September 8, 2018;
(5) Decision and Order in Davis v State of New York, UID No. 2018-038-554 [Ct Cl, DeBow, J.,
June 19, 2018].
1. Although claimant's affirmation states that he affirms "under penalty of perjury, pursuant to 28 U.S.C. § 1746" that the facts contained within the affirmation are true, claimant is "reminded that [he is] in New York state court, not federal court, and therefore if [he does] not submit affidavits, they must comply with CPLR 2106 rather than 28 USC § 1746" (Discovision Associates v Fuji Photo Film Co., Ltd., 71 AD3d 488, 489 [1st Dept 2010]). Because claimant is a party to this action, he is not authorized to submit an affirmation (see CPLR 2106 [a]), and must therefore submit facts in a sworn affidavit.