Opinion
# 2019-015-101 Claim No. 131004 Motion No. M-92998
01-03-2019
ROBERT FLEMING v. THE STATE OF NEW YORK
Robert Fleming, Pro Se Honorable Letitia James, Attorney General By: Douglas R. Kemp, Esq., Assistant Attorney General
Synopsis
Pro inmate's motion for a default judgment was denied.
Case information
| UID: | 2019-015-101 |
| Claimant(s): | ROBERT FLEMING |
| Claimant short name: | FLEMING |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131004 |
| Motion number(s): | M-92998 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Robert Fleming, Pro Se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Douglas R. Kemp, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | January 3, 2019 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant, proceeding pro se, moves for entry of a default judgment.
A document entitled "Consolidated Negligence Tort Claim for Summary Judgement" was filed in the Office of the Court of Claims on February 15, 2018, together with an Affidavit of Service sworn to on February 12, 2018. The filed document (hereinafter referred to as the "claim"), which was assigned claim number 131004, discusses various Directives issued by the Department of Corrections and Community Supervision (DOCCS), references the Federal Rules of Civil Procedure, and sets forth the applicable burden of proof on a motion for summary judgment. The claim also indicates the defendant "failed to respond to claimant's complaint, (other than a brief affidavit asserting that pursuant to CPLR Rule 3022, the defendant is electing to treat the enclosed documents received on today's date as a nullity and is hereby rejecting and returning it to you for the following reasons: the verification is not properly notarized)" (claim, p. 2). In this regard, defense counsel states in opposition to the motion that "[a]ccording to my file, defendant received a Notice of Intention in this matter on December 27, 2017. That same day this office rejected same as being unverified. On January 22, 2018 defendant received the claim in this matter and an answer was timely served on March 1, 2018" (defendant affirmation dated November 5, 2018, ¶ 4). The second affirmative defense set forth in the answer is that the claimant's notice of intention to file a claim was unverified and rejected pursuant to CPLR 3022. In reply to the instant motion, claimant submits a copy of the letter, dated October 26, 2018, in which defense counsel rejects the notice of intention as unverified.
Given the nature of the document that was filed as a claim, and considering the previously served and rejected notice of intention to which claimant believes himself entitled to an answer, it seems clear that the instant motion for entry of a default judgment is premised upon claimant's misunderstanding that defendant is in default in answering his notice of intention. A notice of intention is served on the defendant in order extend the time to serve and file a claim (see Court of Claims Act §§ 10 and 11). A notice of intention is not a claim and an answer to a notice of intention is not required. Inasmuch as defendant served and filed an answer within 40
days of receipt of the claim, it is not in default in answering the claim (see 22 NYCRR 206.7 [a]; CPLR 3215; Court of Claims Act § 11 [a] [i]).
Accordingly, claimant's motion is denied.
January 3, 2019
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
Notice of Motion, undated, with attachments;
Affirmation in opposition, dated November 5, 2018, with Exhibit A;
Correspondence from Robert Fleming, dated November 1, 2018, with attachments;
Claim filed February 15, 2018.