New York State Court of Claims

New York State Court of Claims
BURNS v. STATE OF NEW YORK, # 2021-051-002, Claim No. 133995, Motion No. M-95987


Pro se claimant's motion for a default judgment is denied on both legal and factual grounds. The law does not permit a default judgment against the State and the State established that it served a timely answer.

Case information

UID: 2021-051-002
Claimant(s): TREVOR BURNS
Claimant short name: BURNS
Footnote (claimant name) :
Defendant(s): STATE OF NEW YORK
Footnote (defendant name) :
Third-party claimant(s):
Third-party defendant(s):
Claim number(s): 133995
Motion number(s): M-95987
Cross-motion number(s):
Claimant's attorney: TREVOR BURNS, PRO SE
Defendant's attorney: HON. LETITIA JAMES
New York State Attorney General
Assistant Attorney General
Third-party defendant's attorney:
Signature date: January 13, 2021
City: Rochester
Official citation:
Appellate results:
See also (multicaptioned case)


The following papers were read on claimant's motion for default judgment:

1. Notice of Motion with Affidavit and attached exhibits, filed October 7, 2020;

2. Affirmation of Douglas R. Kemp, AAG, with attached exhibits, filed November 4, 2020;

3. Reply Affidavit with attached exhibit, filed November 13, 2020.

Pro se claimant, a resident at Otisville Correctional Facility, moves for a default judgment against the State for its alleged failure to answer his medical malpractice and negligence claim seeking $6,500,000. Claimant submitted proof that he served his claim upon the Office of the Attorney General by certified mail return receipt requested and it was received on October 16, 2019. The Clerk of the Court of Claims received the claim along with an affidavit of service on November 18, 2019.

Defendant opposes the motion averring that it served its verified answer on claimant and provided a copy of it and an affidavit of service dated December 23, 2019. In reply, claimant, without denying receipt, contends that the verified answer was "responsive to a claim filed by another individual, and should not constitute a substitute answer in the instant action." (claimant's reply affidavit at 1, 4.)

Pursuant to section 206.7 (a) of the Uniform Rules for the Court of Claims (22 NYCRR 206.7 [a]), "service of all responsive pleadings shall be made within 40 days of service of the pleading to which it responds." Upon review of all the papers, it is evident that defendant timely answered the claimant's claim. Although defendant misspelled claimant's name in the caption of its verified answer ("Burnes" instead of "Burns"), it is evident that it was in response to this claim, addressing each of the 72 paragraphs. Pursuant to CPLR 2001, the Court disregards the misspelling of claimant's name in the verified answer after finding that claimant has not been prejudiced.

"It is well settled that an affidavit of service establishes a prima facie case as to the method of service and, therefore, gives rise to a presumption of proper service." Anderson v State of New York, UID No. 2019-038-575 [Ct Cl, DeBow, J., Aug. 2, 2019] [internal quotation marks and citations omitted].) To rebut service of a pleading, the party's sworn denial must contain "detailed and specific contradiction[s] of the allegations" in the affidavit of service. (id. quoting Dunn v Pallett, 42 AD3d 807, 809 [3d Dept 2007] [internal quotation marks omitted]; also citing Carver Fed. Sav. Bank v Shaker Gardens, Inc., 135 AD3d 1212, 1213 [3d Dept 2016]; Caci, 107 AD3d at 1123). Moreover, claimant waived any objection to the defendant's answer by failing to timely reject it. (Retamozzo v State of New York, UID No. 2012-049-037 [Ct Cl, Weinstein, J., June 22, 2012].) To accept claimant's position that a simple misspelling constitutes a nullity would unduly prejudice the defendant and frustrate the longstanding preference "that issues be disposed of upon their merits, in the absence of a showing of prejudice." (Ballard v Billings & Spencer Co., 36 AD2d 71, 76 [4th Dept 1971].)

Alternatively, claimant's motion must be denied based on Court of Claims Act 12 (1) which provides, in part, 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." This Court is in agreement with the many courts interpreting this statute as prohibiting default judgments from being granted against the State (see Idiot v State of New York, UID No. 2020-038-508[Ct Cl, DeBow, J., Jan. 23, 2020]; 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].)

It is, therefore

Ordered that claimant's motion for a default judgment (M-95987) is denied with prejudice because the State has answered the claim.

January 13, 2021

Rochester, New York


Judge of the Court of Claims