Opinion
# 2019-038-507 Claim No. 131617 Motion No. M-92785 Cross-Motion No. CM-92900
01-29-2019
TERRANCE ANDERSON #00-B-1000 v. STATE OF NEW YORK
TERRANCE ANDERSON, 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 denied because that relief is not available against the State. Moreover, defendant served its answer and before claimant made his motion and was therefore no longer in default. Cross motion denied as unnecessary. Claimant has not rejected defendant's answer for untimeliness so there is no need to compel him to accept the answer, and defendant's request for an order vacating its default is also unnecessary, as no order or judgment on default has been entered.
Case information
| UID: | 2019-038-507 |
| Claimant(s): | TERRANCE ANDERSON #00-B-1000 |
| Claimant short name: | ANDERSON |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 131617 |
| Motion number(s): | M-92785 |
| Cross-motion number(s): | CM-92900 |
| Judge: | W. BROOKS DeBOW |
| Claimant's attorney: | TERRANCE ANDERSON, 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 29, 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 seeking compensation for allegedly wrongful confinement in keeplock at Green Haven Correctional Facility between August 23, 2016 and March 2, 2017. Claimant moves for default judgment (Motion No. M-92785). 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-92900), which claimant opposes.
Claimant's motion for default judgment will not be granted because "[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]; 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]). Even if claimant could obtain a default judgment against the State, claimant's motion would be denied because defendant's alleged default was cured prior to the date when claimant made his motion.
Specifically, the documentary evidence submitted on claimant's motion establishes that defendant was served with the claim on June 20, 2018. Defendant's answer was filed and served on August 9, 2018, and claimant received the answer on August 15, 2018 (see Anderson Affidavit, Exhibit C). Claimant's motion for default judgment was not made until September 4, 2018. Even though defendant's was required to have been filed and served no later than July 30, 2018 (see 22 NYCRR § 206.7 [a]) and was therefore untimely, defendant was no longer in default at the time this motion was made.
That part of defendant's cross motion seeking to compel claimant to accept its answer will be denied as unnecessary as claimant has not rejected the answer as untimely. That part of defendant's cross motion seeking an order vacating its default is also 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-92785 is DENIED; and it is further
ORDERED, that defendant's cross motion number CM-92900 is DENIED.
January 29, 2019
Saratoga Springs, New York
W. BROOKS DeBOW
Judge of the Court of Claims Papers considered: (1) Claim number 131617, filed June 20, 2018; (2) Verified Answer, filed August 9, 2018; (3) Notice of Motion (M-92785), dated August 24, 2018; (4) Affidavit of Terrance Anderson in Support of Default Judgment, sworn to August 24, 2018, with Exhibits A-E; (5) Notice of Cross-Motion (CM-92900), dated September 25, 2018; (6) Affirmation of Elizabeth A. Gavin, AAG, in Opposition to Motion for Default Judgment and in Support of Cross-Motion to Compel, dated September 25, 2018, with Exhibits A-C; (7) Correspondence of Terrance Anderson, dated October 22, 2018; (8) Correspondence of Nancy Schulman, Principal Law Clerk, dated November 2, 2018; (9) Reply Affidavit of Terrance Anderson, sworn to November 19, 2018, with Exhibits A-B.