Opinion
# 2014-105-489 Claim No. 121789 Motion No. M-84575
04-22-2014
LEONARD CORNISH v. THE STATE OF NEW YORK
Leonard Cornish, Pro SeNo Appearance Honorable Eric T. Schneiderman, Attorney GeneralBy: Douglas R. Kemp, EsquireAssistant Attorney General
Synopsis
Claimant's failure to move for entry of a default judgment within one year after thedefendant's default in answering the claim resulted in dismissal of the claim as abandoned.
Case information
| UID: | 2014-105-489 |
| Claimant(s): | LEONARD CORNISH |
| Claimant short name: | CORNISH |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 121789 |
| Motion number(s): | M-84575 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Leonard Cornish, Pro SeNo Appearance |
| Defendant's attorney: | Honorable Eric T. Schneiderman, Attorney GeneralBy: Douglas R. Kemp, EsquireAssistant Attorney General |
| Third-party defendant'sattorney: | |
| Signature date: | April 22, 2014 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Defendant moves to dismiss the instant claim on the grounds the filing fee was not paidwithin the period set forth in the Order of the Hon. Richard E. Sise, Presiding Judge of the Court ofClaims, and upon the alternative ground that claimant's failure to seek entry of a default judgmentwithin one year after the date of its default in appearing in this action requires dismissal pursuant toCPLR 3215 (c).
In a document entitled Notice of Claim, filed in the Office of the Clerk of the Court of Claimson September 26, 2012, claimant seeks damages for a 120-day period of confinement following hisarrest for an alleged parole violation, which allegedly occurred after the expiration of his maximumsentence. Claimant alleges that his arrest and confinement were the result of the failure of theDepartment of Corrections and Community Supervision to properly compute his maximum releasedate and alleges causes of action for wrongful confinement, negligence and a violation of the searchand seizure clause of the constitution, presumably referring to the New York State Constitution.
The Order of Judge Sise dated October 9, 2012 required that the statutory filing fee of $50.00be paid within120 days of the date of the Order. The fee was paid on February 7, 2013, one dayafter the expiration of the period provided in the Order. Notwithstanding the defendant's contraryassertion, the Order indicated that the claim would be closed, not dismissed, if the fee was nottimely paid. In these circumstances, the Court does not find the one-day delay in paying the fee anappropriate basis for dismissal (see CPLR 2004).
Turning to defendant's alternate basis for dismissal, CPLR 3215 (c) provides:
"Default not entered within one year. If the plaintiff fails to take proceedingsfor the entry of judgment within one year after the default, the court shall notenter judgment but shall dismiss the complaint as abandoned, without costs,upon its own initiative or on motion, unless sufficient cause is shown why thecomplaint should not be dismissed. A motion by the defendant under thissubdivision does not constitute an appearance in the action."
Defendant avers that although it received the Notice of Claim on September 27, 2012, ittreated it as a notice of intention to file a claim and did not, therefore, serve or file an answer. Notably, defendant does not dispute that it received a copy of the letter from the Clerk, dated October9, 2012, in which the filing of the claim was acknowledged and a claim number assigned. Nevertheless, inasmuch as claimant failed to move for entry of a default judgment within one yearfollowing defendant's default in answering, or show sufficient cause for the delay, the claim mustbe dismissed as abandoned (Diaz v Perez, 113 AD3d 421 [1st Dept 2014]; PHH Mtge. Corp. vDavis, 111 AD3d 1110, 1113 [3d Dept 2013]; Van Hoesen v Dolen, 94 AD3d 1264, 1268 [3d Dept2012]).
Accordingly, defendant's motion is granted and the claim is dismissed, without opposition.
April 22, 2014
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims
The Court considered the following papers:
Notice of motion dated January 6, 2014;
Affirmation of Douglas R. Kemp dated January 6, 2014 with exhibits;
Affidavit of Service of Consoula N. Darling sworn to January 15, 2014.