CADORE v. STATE (2017)

Claimant filed Claim No. 129681 alleging, among other things, that defendant State of New York (defendant) and the County of Broome have failed to pay outstanding vouchers for his work as assigned counsel and attorney for the child on several matters. This Court previously granted the County of Broome's motion to dismiss Claim No. 129681 as against it, based upon the lack of jurisdiction (Cadore v. State of New York, Ct Cl, Aug. 14, 2017, Schaewe, J., Claim No. 129681, Motion No. M-90645). Claimant now moves for entry of a default judgment against defendant. Defendant opposes the motion.¹ Claimant replies.

Before addressing the merits of this motion, some procedural background is necessary. Claimant delivered a copy of a document entitled “Verified Claim” to the Attorney General's Binghamton Regional Office on May 4, 2017 (the First Claim).² A document entitled “Verified Answer” was both filed in the Court of Claims Clerk's Office and mailed to counsel for claimant by defendant on May 25, 2017. On May 30, 2017, another document entitled “Verified Claim” (the Second Claim) was delivered to the Binghamton Regional Office.³ The Second Claim contains a Court of Claims “Received” stamp which is dated May 8, 2017. Defendant admittedly did not file or serve an answer to the Second Claim.

Claimant argues that the First Claim delivered to defendant was a professional courtesy, and because it had not yet been filed, was “a legal nulla bona ․which can never have any legal effect.” ⁴ Claimant contends that defendant was properly served with the Second Claim on May 30, 2017, after it was filed in the Clerk's Office and issued a Claim Number.⁵ Claimant further asserts that because defendant has not filed and served an answer to the Second Claim, the State is in default. Claimant requests that he be awarded judgment.

Conversely, defendant argues that it timely served and filed an answer to the First Claim on May 25, 2017. Defendant contends that service of the Second Claim, which is identical to the First Claim, does not mandate the filing and service of a second answer.

In Claim No. 129681, claimant alleges seventeen causes of action stemming from his arrest, indictment on charges for larceny and a scheme to defraud, and subsequent acquittal.⁶ Specifically, claimant asserts that defendant has wrongfully: removed him from existing case assignments; refused to pay him for work previously performed; failed to restore him to the assigned counsel and attorneys for the children panels; and that defendant has defamed him. Claimant alleges that defendant's wrongful conduct has been continuous since October 2012.

The Court of Claims Act, in pertinent part, provides that a claim to recover damages for either personal injuries — whether caused by the intentional or unintentional (negligent) conduct of an officer or employee of the State — or breach of contract must be filed with the Clerk of the Court and served upon the Attorney General (Court of Claims Act § 10 [3], [3-b], [4] ). The claim must be served personally or by certified mail, return receipt requested and such service is complete when the claim is received in the Attorney General's Office (Court of Claims Act § 11 [a] [1] ). Pursuant to the Uniform Rules for the Court of Claims (22 NYCRR) § 206.7 (a) and with an exception not relevant here, defendant shall serve an answer within 40 days of service of the claim.

Claimant's motion for a default judgment must be denied. Contrary to claimant's contention, the Court of Claims Act “does not prescribe the order of filing and service, [it] merely requir[es] both to occur within the requisite time period” (Tooks v. State of New York, 40 AD3d 1347, 1348-1349 [3d Dept 2007], lv denied 9 NY3d 814 [2007]; see also Dreger v. New York State Thruway Auth., 81 NY2d 721, 724 [1992]; Caci v. State of New York, 107 AD3d 1121 [3d Dept 2013]; cf. CPLR 304, 306-b [where an action or special proceeding in Supreme Court or County Court is commenced upon the filing of a summons and complaint (or summons with notice), or petition, respectively, and service is effected thereafter] ). In this case, defendant received the First Claim on May 4, 2017. Notwithstanding claimant's characterization of the First Claim as a courtesy copy, defendant was properly served with the First Claim by hand-delivery to an assistant attorney general (Court of Claims Act § 10, CPLR 307 [1] ). Defendant had until June 13, 2017 in which to serve a verified answer. Defendant's answer, which was mailed to counsel on May 25, 2017, was therefore timely (see CPLR 2103 [b] ). Moreover, a review of the First Claim, the Second Claim, and the filed Claim No. 129681 reveals that all factual allegations and requests for relief are identical. The additional information consisting of a received-date-stamp on the Second Claim does not constitute an amendment of the claim (see CPLR 3025) which would necessitate another answer.

Accordingly, the Court finds that defendant is not in default and Motion No. M-90867 is denied in its entirety.

FOOTNOTES

1.   To the extent that claimant may also be seeking a default judgment against the County of Broome, the County has also opposed the motion. However, in light of this Court's dismissal of Claim No. 129681 as against the County, that portion of the motion seeking judgment against the County of Broome is denied as moot.

2.   Based upon the hand-written notation “Rec'd by Pers Serv, AJM,” it appears that the document was hand-delivered to Assistant Attorney General (AAG) Aaron J. Marcus (Affirmation of AAG Douglas H. Squire, dated Aug. 24, 2017, in Opposition to Motion, Exhibit A).

3.   This document contains the hand-written notation “PS DHS 11:12 am” and appears to have been hand-delivered to AAG Squire (Affirmation of AAG Douglas H. Squire, dated Aug. 24, 2017, in Opposition to Motion, Exhibit C).

4.   Reply Affirmation of Craig R. Fritzsch, Esq., dated Sept. 8, 2017, in Support of Motion, ¶ 7.

5.   The Court notes that the claim number was not written on the Second Claim.

6.   The charges were apparently based upon claimant's submission of vouchers seeking payment in the amount of $ 747,139.00 for numerous appointments as both assigned counsel pursuant to County Law Article 18-B and attorney for the child pursuant to the Rules of the Appellate Division, Third Department (22 NYCRR), Part 835.

Catherine C. Schaewe, J.