Opinion
# 2021-015-033 Claim No. 133576 Motion No. M-96356
02-26-2021
GABRIEL GILMORE v. THE STATE OF NEW YORK
Gabriel Gilmore, Pro Se Honorable Letitia James, Attorney General By: Christina Calabrese, Esq., Assistant Attorney General
Synopsis
Pro se claimant's motion for a default judgment was denied as procedurally defective.
Case information
| UID: | 2021-015-033 |
| Claimant(s): | GABRIEL GILMORE |
| Claimant short name: | GILMORE |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 133576 |
| Motion number(s): | M-96356 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Gabriel Gilmore, Pro Se |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Christina Calabrese, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | February 26, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimant moves for a default judgment on the ground the defendant failed to appear and answer the claim. Defendant opposes the motion on the grounds the motion is defective, a judgment by default may not be taken against the State, and an answer to the claim was in fact served in this matter.
The instant claim was filed in the Office of the Chief Clerk of the Court of Claims on September 3, 2019. Attached to the filed claim is an affidavit of service, sworn to August 28, 2019, indicating the claim was served in an unspecified manner upon the Attorney General. Defendant indicates in opposition to claimant's motion that an incorrect claim number was affixed to its answer and, as a result, an answer relating to the subject claim was not filed in the Clerk's office. Notwithstanding its default in answering, defendant contends that default judgments against the State are prohibited by Court of Claims Act § 12 (1), which states the following:
It appears the claim number affixed to defendant's answer related to a different claim filed by the claimant.
"In no case shall any liability be implied against the state. No 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."
While defendant cites several Court of Claims cases to support the proposition that judgments against the State may not be entered on default, other authority holds that a default may be entered against the State so long as liability is not implied (247-59 W., LLC v State of New York, 27 Misc 3d 570 [Ct Cl, 2010]). In any event, claimant's motion must be denied as he failed to include a notice of motion as required (CPLR 2214; 22 NYCRR 206.8. [a]), and to support his motion with copies of the claim, an affidavit of facts, or an affidavit of service of the claim (see CPLR 3215 [f]; cf. 247-59 W., LLC v State of New York, supra).
Accordingly, claimant's motion is denied.
February 26, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Undated, unsworn notice of motion filed January 6, 2021, with Exhibits A-E;
2. Affirmation in Opposition dated January 28, 2021, with Exhibit A.