Opinion
# 2019-038-503 Claim No. 127257 Motion No. M-92638 Cross-Motion No. CM-92733
01-16-2019
BARRY ARKIM, #91-B-0146 v. THE STATE OF NEW YORK
BARRY ARKIM, Pro se LETITIA JAMES, Attorney General of the State of New York By: Elizabeth A. Gavin, Assistant Attorney General
Synopsis
Claimant's motion for default judgment granted in part. Judgment on default is precluded by the Court of Claims Act, but defendant's failure to file and serve an answer is sanctioned by precluding defendant from offering evidence at the trial of liability. Defendant's cross motion to compel claimant to accept service of a claim denied in the absence of previously untimely service of an answer, and its request for and extension of time to file and serve the answer denied in the absence of a reasonable excuse for the failure to file and serve the answer.
Case information
| UID: | 2019-038-503 |
| Claimant(s): | BARRY ARKIM, #91-B-0146 |
| Claimant short name: | ARKIM |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127257 |
| Motion number(s): | M-92638 |
| Cross-motion number(s): | CM-92733 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | BARRY ARKIM, Pro se |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Elizabeth A. Gavin, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 16, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual incarcerated in a State correctional facility, filed this claim on December 22, 2015 in which he alleges that he was wrongfully confined in keeplock at Green Haven Correctional Facility between June 23, 2015 and July 9, 2015. In October 2017, the Court denied the parties' competing motions for summary judgment on the ground that issue had not been joined as no answer had been filed (see Arkim v State of New York, UID No. 2017-038-574 [Ct Cl, DeBow, J., Oct. 5, 2017, filed Nov. 1, 2017]), and defendant's pre-answer cross motion to dismiss the claim was denied because the cross motion was not timely, having been made more than 40 days after the service of the claim (see id.). Claimant now moves for judgment on default because defendant has still not answered the claim (Motion No. M-92638). Defendant opposes claimant's motion and cross-moves for an order compelling claimant to accept defendant's answer and/or vacating defendant's default (Motion No. CM-92733), which claimant opposes.
Turning first to claimant's motion, a judgment on default in failing to answer the claim cannot be granted against the State (see Court of Claims Act § 12 [1] ["[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"]; 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]). That does not leave claimant without a remedy, however, as the Court may sanction defendant's default without granting judgment (see Gibson v State of New York, UID No. 2000-017-611 [Ct Cl, O'Rourke, J., Dec. 20, 2000; see also 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]). The remedy, as the foregoing decisions demonstrate, requires claimant to come forward with "such legal evidence as would establish liability" (Court of Claims Act § 12 [1]), and "[a]t such trial, defendant shall be precluded from offering any evidence, testimonial or documentary, on the issue of liability, but it will be allowed to cross-examine claimant's witnesses. The conduct of defendant's case with respect to damages is unaffected by this decision" (Gibson v State of New York, UID No. 2000-017-611). Accordingly, and because defendant's cross motion will not be granted as discussed infra, claimant's motion will be granted in part to the extent and in the manner set forth in Gibson.
As noted above, defendant's cross motion seeks an order compelling claimant to accept its answer and/or vacating its default in answering. However, this Court's prior decision brought defendant's default in answering to defendant's attention, after which defendant could have served the answer, and if such service was rejected by claimant, defendant could have sought an order pursuant to CPLR 3012 (d) compelling claimant to accept the answer or extending defendant's time within which to file and serve the answer. The cross motion to compel claimant to accept service of the answer will not be granted as such relief is appropriate only when a pleading has been untimely served (CPLR 3012 [d] [emphasis added]). Defendant's submission in support of its cross motion does not establish that the answer was ever previously served on claimant, or that claimant rejected such service as untimely (see e.g. Watson v Pollacchi, 32 AD3d 565 [3d Dept 2006]), and thus, defendant is not entitled to the relief it seeks.
Even if the Court were to deem that the answer that is appended to the cross motion to have been served via service of the cross motion, or construe the cross motion as seeking an extension of the time to file and serve an answer, the Court would not grant such relief for the reasons that follow.
CPLR 3012 (d) provides in pertinent part that a "court may extend the time to . . . plead, or compel the acceptance of a pleading untimely served, upon such terms as may be just and upon a showing of reasonable excuse for the delay or default." "To extend the time to answer the [claim] and to compel the [claimant] to accept the untimely answer as timely, a defendant must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action" (Mannino Dev., Inc. v Linares, 117 AD3d 995, 995 [2d Dept 2014]). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the [] Court" (Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889, 890 [2d Dept 2010]).
Defendant proffers the excuse of law office failure (see Gavin Affirmation, ¶ 9), which might constitute a reasonable excuse if defendant were to provide facts demonstrating that the failure to answer this claim involved "misplaced files, overlooked time periods, preoccupied attorneys, complexity of litigation and the like" (Morrocoy Marina v Altengarten, 93 AD2d 270, 272 [2d Dept 1983]). On the other hand, " 'a conclusory, undetailed, and uncorroborated claim of law office failure does not amount to a reasonable excuse' " (Bank of N.Y. Mellon v Colucci, 138 AD3d 1047, 1047 [2d Dept 2016], quoting White v Daimler Chrysler Corp., 44 AD3d 651, 651 [2d Dept 2007]).
Here, defendant asserts that the prior decision and order that was filed on November 1, 2017 indicated that the Court accepted an amended claim but did not provide defendant with a deadline for service of its answer to the amended claim, and thus, no answer date was entered into the Attorney General's office calendar. Counsel asserts that this failure to calendar the answer deadline constitutes law office failure that qualifies as a reasonable excuse for the default (see Gavin Affirmation, ¶¶ 5, 9). This factual scenario is uncompelling, however, as the prior decision was addressed to claimant's motion for summary judgment and defendant's cross motion to dismiss or for summary judgment (see Gavin Affirmation, Exhibit C). Claimant did not seek permission to serve and file an amended claim, and no such relief was granted, either explicitly or implicitly. Thus, defendant's proffered excuse of law office failure is not based on the facts of this matter, and it has therefore failed to offer any excuse for the its failure to timely serve and file an answer. The only event that triggered a deadline for the service and filing of an answer was the initial service of the claim on December 28, 2015, receipt of which was acknowledged by defendant in its May 16, 2017 cross motion seeking dismissal of the claim (see id.). Defendant does not offer any other reason for its failure to file and serve an answer following the Court's October 2017 decision and order denying its pre-answer motion to dismiss the claim, nor why it waited nearly 10 months after the filing of the decision and order to seek relief under CPLR 3012 (d), and only did so in response to claimant's motion for default judgment. In sum, in the absence of a reasonable excuse for defendant's delay and default in serving an answer, defendant's cross motion will not be granted.
Finally, that part of defendant's cross motion seeking an order vacating its default is unnecessary, as no order or judgment on default has been entered (cf. CPLR 5015 [a]).
Accordingly, it is
ORDERED, that claimant's motion number M-92638 is GRANTED IN PART, and this claim shall proceed to trial in due course, and it is further
ORDERED, that at that trial, claimant will have to establish a prima facie case of liability, and defendant may cross-examine claimant's witnesses but shall be precluded from offering any evidence on the issue of liability, and it is further
ORDERED, that claimant's motion number M-92638 is DENIED in all other respects, and it is further
ORDERED, that defendant's cross motion number CM-92556 is DENIED.
January 16, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 127257, filed December 22, 2015; (2) Notice of Motion for Default Judgment (M-92638), dated July 16, 2018; (3) Affidavit of Barry Arkim in Support of Motion for Default Judgment, sworn to July 23, 2018, with Exhibits 1-2; (4) Notice of Cross Motion to Compel (CM-92733), dated August 21, 2018; (5) Affirmation of Elizabeth A. Gavin, AAG, in Opposition to Motion for Default Judgment and in Support of Cross Motion to Compel, dated August 21, 2018, with Exhibits A-D; (6) Affidavit of Barry Arkim in Opposition to Defendant's Cross Motion, sworn to October 12, 2018; (7) Decision and Order in Arkim v State of New York, UID No. 2017-038-574 (Ct Cl, DeBow, J., Oct. 5, 2017, filed Nov. 1, 2017).