Claimant's motion for a default judgment denied. A default judgment in failing to answer the claim cannot be granted against the State and, in any event, defendant timely answered the claim. Defendant's cross motion to compel claimant to accept its answer denied as uneccesary.
|Claimant short name:||NOVA|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||W. BROOKS DeBOW|
|Claimant's attorney:||JULIO NOVA, Pro se|
|Defendant's attorney:||LETITIA JAMES, Attorney General
of the State of New York
By: Thomas J. Reilly, Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||January 5, 2021|
|See also (multicaptioned case)|
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for the alleged violation of his due process and equal protection rights by the Albany County Clerk. Claimant now moves for a default judgment on the claim. Defendant opposes the motion and cross-moves to compel claimant to accept its answer. Claimant has not opposed the cross motion.
The claim alleges that on or about January 4, 2019, claimant "commenced a civil right[s] action pursuant to 42 [USC] § 1983 in Albany County Courthouse, Supreme Court" (Claim No. 134129, ¶ 4). The claim alleges that throughout the course of the litigation, Albany County Clerk Bruce A. Hidley treated claimant, who is a prison inmate, "differently from others similarly situated with no rational basis for the difference" in violation of his state constitutional right to equal protection, and, as a result, "hindered [claimant's] ability to proceed" with his civil rights claim (id. at ¶ 2). The claim alleges that "for a period of four (4) mo[n]ths, right after the commencement of [c]laimant's State civil action, the [C]lerk of the Court, willfully, refused to process [c]laimant's complaint" and that the Albany County Clerk further "interfered with [the litigation] process by not processing [c]laimant's motions as required per Court's rules and regulations" (id. at ¶¶ 6-7). The claim alleges that as a result of the Albany County Clerk's actions and/or inaction, which were grossly negligent and in violation of the State's "own rules and regulations," claimant was denied due process, access to the courts, and equal protection, and his 42 [USC] § 1983 action was dismissed (see id. at ¶¶ 8-11). The claim further alleges that the Albany County Clerk's actions were "in violation of [the] Code of Conduct for Judicial Employees Policy" (id. at ¶ 12).
Defendant made a pre-answer motion to dismiss the claim for lack of subject matter jurisdiction on the ground that the Albany County Clerk is not a State employee, and on the basis of the documentary evidence - namely, an October 23, 2019 decision and order in Albany County Supreme Court by Acting Justice of the Supreme Court Richard M. Platkin - on the ground that it conclusively established that the Albany County Clerk did not refuse to process claimant's complaint or motions. By Decision and Order dated July 10, 2020, the Court granted in part defendant's motion to dismiss the claim, holding that the Court entertains subject matter jurisdiction over the claim because the Albany County Clerk was acting in his capacity as a State employee when he allegedly failed to process claimant's complaint and motions, and that while the documentary evidence conclusively established that the Albany County Clerk did not willfully refuse to process the complaint, it did not utterly refute the allegations that the Albany County Clerk failed to process claimant's motions (see Nova v State of New York, UID No. 2020-038-545 [Ct Cl, DeBow, J., July 10, 2020]).
Claimant now moves for a default judgment on the remainder of the claim, arguing that he filed notice of entry of the Court's July 10, 2020 on July 17, 2020 and thereafter served defendant with a copy thereof (see Nova Affidavit, ¶ 6), and that "[t]o date there has not been service of an Answer to the Claim nor [has defendant] requested or been given an extension of time to answer" (id. at ¶ 7). Defendant opposes the motion and cross-moves to compel claimant to accept its answer, arguing that defendant timely served its Verified Answer on November 3, 2020, following the expiration of Governor Cuomo's Executive Order tolling the time within which to answer the claim due to the Coronavirus pandemic (see Reilly Affirmation, ¶¶ 3-4). Defendant further argues that it asserted in its Verified Answer a meritorious defense, namely, that because the claim alleges that the Albany County Clerk was negligent in the performance of a ministerial act, claimant was required to demonstrate that the Albany County Clerk had a special duty to him, and that because claimant has failed to make such a showing, the claim lacks merit (see id. at ¶ 5). Defendant argues that because its Verified Answer was timely served and asserts a meritorious defense, claimant must be compelled to accept the answer, and his default motion must be denied (see id. at ¶ 6).
With respect to claimant's motion for a default judgment, Court of Claims Act § 12 (a) provides that "[n]o 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" (Court of Claims Act § 12 ). In this Court's view, that statute prohibits default judgments from being granted against the State (see Arkim v State of New York, UID No. 2019-038-503 [Ct Cl, DeBow, J., Jan. 16, 2019]; 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] [default judgment on liability entered where defendant conceded liability upon contract for lease of property]). Because a judgment on default in failing to answer the claim cannot be granted against the State, claimant's motion seeking that relief must be denied.
Moreover, even if a default judgment could be granted against the State, the Court would deny claimant's motion because defendant timely answered the claim. CPLR 3012 (d) provides that "[u]pon the application of a party, the court may . . . compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for delay or default." A defendant who moves to compel a claimant to accept an untimely served answer "must provide a reasonable excuse for the default and demonstrate a potentially meritorious defense to the [claim]" (Sargsyan v Kaieteur Constr., Inc., 171 AD3d 826, 827 [2d Dept 2019] [internal quotation marks omitted]; see Mannino Dev., Inc. v Linares, 117 AD3d 995, 995 [2d Dept 2014]).
Claimant served the claim on the Attorney General on December 26, 2019 (see Nova Affidavit, Exhibit A), and defendant promptly and timely served its pre-answer motion to dismiss on January 14, 2020 (see Nova v State of New York, UID No. 2020-038-545 [Matthews Affidavit of Service, sworn to Jan. 14, 2020]), which the Court granted in part and denied in part in a Decision and Order dated July 10, 2020. Defendant served its Verified Answer on November 3, 2020 (see Reilly Affirmation, ¶ 2, Exhibit A), shortly after claimant's service of his motion for a default judgment (see Nova Affidavit of Service, sworn to Oct. 23, 2020). However, on March 20, 2020, Governor Cuomo issued Executive Order No. 202.8, which, among other things, directed that "any specific time limit for the commencement, filing, or service of any legal action, notice, motion, or other process or proceeding, as prescribed by the procedural laws of the state, including but not limited to [certain state laws], any other statute, local law, ordinance, order, rule, or regulation, or part thereof, is hereby tolled from the date of this executive order until April 19, 2020" (Executive Order No. 202.8, dated Mar. 20, 2020 [9 NYCRR 8.202.8] [emphasis added]). That directive was extended through successive Executive Orders, including Executive Order No. 202.67, which extended the directive a final time through "November 3, 2020, and after such date any such time limit will no longer be tolled" (Executive Order No. 202.67, dated Oct. 4, 2020 [9 NYCRR 8.202.67] [emphasis added]; see also Executive Order No. 202.72, dated Nov. 3, 2020 [9 NYCRR 8.202.72] ["the suspension for civil cases in Executive Order 202.8, as modified and extended in subsequent Executive Orders, that tolled any specific time limit for the commencement, filing, or service of any legal action, . . . as prescribed by the procedural laws of the state, including but not limited to . . . the court of claims act, . . . is hereby no longer in effect as of November 4, 2020"]). Here, defendant's Verified Answer was served on November 3, 2020, the final day before the tolling of its time to do so expired. Defendant's Verified Answer thus was timely served, and claimant has not responded to defendant's cross motion or rejected defendant's Verified Answer as untimely since it was served following the filing and service of claimant's motion for a default judgment, and defendant's cross motion to compel claimant to accept its answer will be denied as unnecessary (see e.g. Anderson v State of New York, UID No. 2019-038-507 [Ct Cl, DeBow, J., Jan. 29, 2019]).
Accordingly, it is
ORDERED, that claimant's motion number M-96152 is DENIED; and it is further
ORDERED, that defendant's cross motion number CM-96156 is DENIED as unnecessary.
January 5, 2021
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims
1. Claim No. 134129, filed December 11, 2019;
2. Verified Answer, filed November 4, 2020;
3. Notice of Motion, dated October 23, 2020;
4. Affidavit of Julio Nova in Support to Take a Default, sworn to October 23, 2020, with Exhibits A-D;
5. Notice of Cross-Motion to Compel Acceptance of Defendant's Answer, dated November 16, 2020;
6. Affirmation of Thomas J. Reilly, AAG, in Support of Defendant's Cross-Motion to Compel Acceptance of Defendant's Answer, dated November 16, 2020, with Exhibit A;
7. Affidavit of Service of Theresa MacPhail, sworn to November 16, 2020;
8. Decision and Order, Nova v State of New York, UID No. 2020-038-545 (Ct Cl, DeBow, J., July 10, 2020).