Opinion
# 2020-038-508 Claim No. 132289 Motion No. M-94929 Cross-Motion No. CM-95060
01-23-2020
DEMETRIOUS ODIOT #95-A-3922 v. THE STATE OF NEW YORK
DEMETRIOUS ODIOT, Pro se LETITIA JAMES, Attorney General of the State of New York By: Heather R. Rubinstein, Assistant Attorney General
Synopsis
Claimant's motion for a default judgment denied inasmuch as that relief is unavailable against the State in the Court of Claims. Defendant's cross motion to compel claimant to accept its untimely answer granted. Defendant demonstrated a reasonable excuse for its failure to timely file and serve its verified answer and a potentially meritorious defense to the claim.
Case information
| UID: | 2020-038-508 |
| Claimant(s): | DEMETRIOUS ODIOT #95-A-3922 |
| Claimant short name: | ODIOT |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 132289 |
| Motion number(s): | M-94929 |
| Cross-motion number(s): | CM-95060 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | DEMETRIOUS ODIOT, Pro se |
| Defendant's attorney: | LETITIA JAMES, Attorney General of the State of New York By: Heather R. Rubinstein, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 23, 2020 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, an individual currently incarcerated in a State correctional facility, filed this claim seeking compensation for 88 days of allegedly wrongful confinement in administrative segregation at Green Haven Correctional Facility (CF) between November 11, 2017 and February 5, 2018. Claimant now moves for a default judgment against defendant for failure to answer the claim. Defendant opposes the motion and cross-moves to compel claimant to accept defendant's untimely answer. Claimant has not opposed the cross motion.
Claimant filed the claim with the Clerk of the Court of Claims on November 19, 2018, with an accompanying affidavit of service indicating that the claim was served on the Attorney General by certified mail, return receipt requested, on November 19, 2018 (see Claim No. 132289; see Rubinstein Affirmation, Exhibit B). On November 18, 2019, claimant filed the instant motion seeking a default judgment based on defendant's failure to answer the claim (see Notice of Motion for Default Judgement Pursuant to C.P.L.R. §3215(a), dated September 24, 2019), and it was received by the Attorney General on the same day (see Rubinstein Affirmation, Exhibit A). Defendant filed its verified answer to the claim on December 23, 2019, with an affidavit of service averring that the claim was served on claimant on that date (see Verified Answer, filed Dec. 23, 2019).
As an initial matter, claimant's motion for a default judgment will not be granted because 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 [1]). 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 it will grant defendant's cross motion, for the reasons that follow.
To the extent that claimant's submission seeks an order allowing claimant to dispense with service of his notice of motion for a default judgment on defendant (see Notice of Motion for Dispensing with Notice of Motion for Default Judgement, dated September 24, 2019; Affidavit of Demetrious Odiot in Support of Motion for Dispensing with Notice of Motion for Default Judgement, sworn to September 24, 2019), that relief will not be granted inasmuch as defendant has opposed claimant's motion for default judgment, and claimant has provided an affidavit of service indicating that he served his default motion and all supporting papers on defendant on an unspecified date in November 2019 (see Odiot Affidavit of Service, sworn to November 4, 2019).
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]). "The determination of what constitutes a reasonable excuse lies within the sound discretion of the [trial court]" (Maspeth Fed. Sav. & Loan Assn. v McGown, 77 AD3d 889, 890 [2d Dept 2010]) and is "to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits" (Yuxi Li v Caruso, 161 AD3d 1132, 1134 [2d Dept 2018]).
In support of its cross motion, defendant asks the Court to exercise its discretion to compel claimant to accept its untimely answer pursuant to CPLR § 3012 (d) (see Rubinstein Affirmation, ¶¶ 4-5). Defendant argues that it failed to serve a verified answer to the claim due to law office failure and thus has a reasonable excuse for the failure to timely answer (see id. at ¶¶ 7-8). Defendant explains that the Office of the Attorney General (OAG) mistakenly identified the instant claim as duplicative of an earlier wrongful confinement claim filed and served by claimant, Claim No. 131436, and that the OAG's internal records indicated that both Claim No. 131436 and the instant claim had been answered (see id. at ¶ 7, Exhibits D-E). Defendant states that this error occurred because it answered Claim No. 131436 before that claim had been filed with the Clerk of the Court of Claims and issued a claim number (see id. at ¶ 7). Defendant argues that claimant should be compelled to accept its untimely answer because defendant has a meritorious defense to the claim - i.e. that claimant has failed to establish that his confinement was not otherwise privileged, which is a necessary element of a wrongful confinement claim - and because claimant has failed to demonstrate that he would be prejudiced by defendant's filing of the answer (see id. at ¶¶ 9-12). Claimant has not opposed the cross motion or otherwise rejected the answer that was served on him.
Because no order or judgment on default has been or will be entered against defendant, defendant's request in its cross motion that any default judgment against it be vacated (see Rubinstein Affirmation, ¶ 2) is unnecessary.
Typically, a claimant who accepts an untimely answer without objection is deemed to have waived both the late service of the answer and defendant's default (see Oparaji v Duran, 18 AD3d 725, 725-726 [2d Dept 2005]; Ligotti v Wilson, 287 AD2d 550, 551 [2d Dept 2001]; Gonzalez v Gonzalez, 240 AD2d 630, 631 [2d Dept 1997]). However, where a defendant files and serves a late answer in response to a motion for a default judgment, a claimant will not be deemed to have waived the late service of the answer and the default (see Hosten v Oladapo, 44 AD3d 1006, 1007 [2d Dept 2007] ["Since the plaintiff notified the defendant that he was in default and made a motion for leave to enter a default judgment prior to the service of an answer, the plaintiff could not be deemed to have thereafter waived the late service and the default"]; Katz v Perl, 22 AD3d 806, 807 [2d Dept 2005] [a claimant who has made a motion for a default judgment has "made (an) objection to the defendants' failure to serve a timely answer, brought the objection to the attention of the parties and the court, and (can) no longer be 'deemed' to have waived that objection"]; see also Estrella v Herrera, 23 AD3d 320, 321 [1st Dept 2005] ["We reject defendant's alternative argument that plaintiffs waived the default by failing to return his answer, which was served after the motion for a default judgment was made"]). As noted above, here, claimant has not opposed defendant's cross motion to compel and has not otherwise rejected defendant's verified answer. However, because the verified answer was served in response to claimant's motion for a default judgment, claimant was not required to reject the untimely served answer in order to preserve his objection to its late service, and defendant's cross motion to compel will be addressed on the merits.
Law office failure may be proffered as a reasonable excuse for the failure to timely answer a claim, but it "must be supported by a detailed and credible explanation of the default at issue. A conclusory, undetailed, and uncorroborated allegation of law office failure does not amount to a reasonable excuse" (Neilson v 6D Farm Corp., 123 AD3d 676, 679 [2d Dept 2014] [internal citations omitted]). " 'Law office failure' has been interpreted as involving misplaced files, overlooked time periods, preoccupied attorneys, complexity of litigation and the like" (Morrocoy Marina v Altengarten, 93 AD2d 270, 272 [2d Dept 1983]). In the Court's view, here, defendant has sufficiently alleged law office failure as a reasonable excuse for its untimely filing and service of its verified answer. Defense counsel avers that an oversight occurred when claimant filed the instant claim after earlier filing Claim No. 131436, which also alleged a cause of action sounding in wrongful confinement at Green Haven CF. Notably, the period of wrongful confinement alleged in Claim No. 131436 - a period of 38 days from October 2, 2017 to November 9, 2017 - directly preceded the 88-day period that is the subject of the instant claim and is addressed at length in the instant claim (see Rubinstein Affirmation, ¶ 7; see also Claim No. 132289, ¶¶ 4-11). Defense counsel's affirmation is supported by a May 24, 2018 letter from the Chief Clerk of the Court of Claims acknowledging filing of a Verified Answer in connection with a claim filed by claimant that had not yet been assigned a claim number, and handwritten on that letter was the claim number of the instant claim (see Rubinstein Affirmation, Exhibit D).
Defendant has also submitted a June 13, 2018 acknowledgment letter from the Chief Clerk of the Court of Claims confirming the filing of Claim No. 131436, and handwritten on that letter is a note that says "think this is same claim filed 2x" (id., Exhibit E). However, the Court does not agree that this demonstrates that OAG "[s]taff were under the mistaken impression that the Claims were duplicative" (Rubinstein Affirmation, ¶ 7). The acknowledgment letter was sent over five months before claimant filed and served the instant claim, and thus it is unclear how the handwritten notes on that letter could relate to a claim that would not be filed until several months later. Moreover, it is equally as plausible that the handwritten note indicating that the claim had been filed twice was related to the fact that Claim No. 131436 was served twice, once on March 23, 2018 and again on May 16, 2018 (see id.). Thus, the Court concludes that the handwritten notes on the June 13, 2018 acknowledgment letter do not support defendant's claim of law office failure.
Having provided a reasonable excuse for its failure to answer the claim, defendant must also demonstrate a potentially meritorious defense. Defendant argues that claimant has failed to prove a necessary element of his wrongful confinement claim - that the confinement was not otherwise privileged - because "[t]he limited rationale he puts forth as the basis for the confinement not being otherwise privileged, does not rise to the level necessary to overcome the state's immunity" (Rubinstein Affirmation, ¶ 10). Defendant asserted as affirmative defenses in its answer that the claim fails to state a cause of action and that the actions of defendant's agents and employees were privileged, and thus defendant is immune from liability (see Verified Answer, ¶¶ 3-5). Despite the conclusory nature of defendant's argument, its verified answer is sufficient to establish a potentially meritorious defense (see e.g. Harris v City of New York, 30 AD3d 461, 465 [2d Dept 2006] [potentially meritorious defense established where defendant filed a verified answer "denying the essential allegations of wrongdoing set forth in the complaint" and asserted "as an affirmative defense, that the actions of the defendant law enforcement officers in the City's employ were reasonably necessary, committed in good faith without malice, and with probable cause"]; Goldman v City of New York, 287 AD2d 482, 483 [2d Dept 2001] ["the proposed verified answer which (defendant) submitted in support of his cross motion was sufficient to demonstrate the existence of a potentially meritorious defense"]). Moreover, although defendant failed to answer the claim until approximately one year after it was filed, there is no indication that claimant was prejudiced by the delay and, as discussed above, the delay was not willful but rather was caused by inadvertent law office failure (see Yuxi Li, 161 AD3d at 1134). Based on the foregoing, and because it is well settled that "public policy favors the resolution of cases on their merits" (Jennings v Queens Tribune Publs., LLC, 101 AD3d 1086, 1087 [2d Dept 2012]), defendant's cross motion will be granted to extend defendant's time to answer the claim nunc pro tunc to December 23, 2019, and claimant is compelled to accept defendant's verified answer.
Accordingly, it is
ORDERED, that clamant's motion number M-94929 seeking a default judgment is DENIED; and it is further
ORDERED, that defendant's cross motion number CM-95060 is GRANTED, and defendant's time to serve the Verified Answer on claimant is extended nunc pro tunc to December 23, 2019, and claimant is compelled to accept defendant's verified answer.
January 23, 2020
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: 1. Claim number 132289, filed November 19, 2018; 2. Notice of Motion for Default Judgement Pursuant to C.P.L.R. §3215(a), dated September 24, 2019; 3. Affidavit of Demetrious Odiot in Support of Motion for Default Judgement C.P.L.R. §3215(a), sworn to September 24, 2019; 4. Notice of Motion for Dispensing with Notice of Motion for Default Judgement, dated September 24, 2019; 5. Affidavit of Demetrious Odiot in Support of Motion for Dispensing with Notice of Motion for Default Judgement, sworn to September 24, 2019; 6. Affidavit of Facts Upon Motion for Default, sworn to September 24, 2019, with unenumerated attachments and Exhibits A-H; 7. Affidavit of Service of Demetrious Odiot, sworn to November 4, 2019; 8. Verified Answer, filed December 23, 2019; 9. Notice of Cross Motion, dated December 24, 2019; 10. Affirmation of Heather R. Rubinstein, AAG, in Opposition to Motion for Default Judgment and in Support of Cross Motion to Compel, dated December 24, 2019, with Exhibits A-E; 11. Affidavit of Service of Francine Broughton, sworn to December 24, 2019.