Spickerman v. State

85 A.D.2d 60, 448 N.Y.S.2d 569, 1982 N.Y. App. Div. LEXIS 17066

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1982
• Docket: Claim No. 64227
• Status: Published

Opinions

OPINION OF THE COURT

Kane, J.

This is a negligence case. Claimant, injured while riding as a passenger in a vehicle involved in a two-car accident, seeks substantial damages from the State of New York for its alleged negligent construction and maintenance of a highway in the Town of Sand Lake, Rensselaer County. The claim was timely filed on June 9, 1980, and upon defendant’s request, the time to file an answer was extended to September 1,1980. As a result of an inadvertent oversight on the part of the Assistant Attorney-General assigned to the defense of this case, no answer was served or filed.¹ On March 5, 1981, claimant moved for entry of judgment by default and for an assessment of damages (CPLR 3215). Defendant immediately cross-moved to be relieved of its default in pleading, for permission to serve and file its answer annexed to the motion papers, and for a stay. The Court of Claims, in effect, denied claimant’s motion and granted the cross motion, except for the requested stay, conditioned upon defendant paying to claimant’s attorneys the sum of $500. These cross appeals ensued. .

While we agree that defendant should be relieved of its default in answering, we are of the view that the $500 sanction imposed is impermissible. This directive clearly qualifies as an award of attorneys’ fees and such is expressly prohibited by statute (Court of Claims Act, § 27; see Waterman v State of New York, 33 AD2d 716). Although defendant argues that under the doctrine of sovereign immunity a default judgment for failure to serve and file a timely answer may not be entered against the State, we need only consider whether, under the facts presented in this case, the Court of Claims abused its discretion in denying claimant’s motion. Admittedly, the failure to serve an answer was an oversight, a circumstance which ordinarily would fall into the category of “law office failure”, and without more would be insufficient to excuse a default (Reed, v Cone, 61 AD2d 877, 878). However, when, as here, the default in answering is not willful, the defaulting party moves expeditiously for relief and the nondefaulting party is not unduly prejudiced, a court has discretion to permit the interposition of an answer under traditional concepts of permitting a litigant, against whom a claim is made, to have his day in court, particularly when there is no intention to abandon the matter and a defense on the merits exists (Frucher v Kaye's Auto Exch., 74 AD2d 709; Matter of Hanover Sand & Gravel v New York State Thruway Auth., 65 AD2d 863, 864; Fusco v Malcolm, 50 AD2d 685, 686; see, also, Spoor-Lasher Co. v J. E. H. Dev. Co., 58 AD2d 646, 647).²

The existence of a meritorious defense is founded upon the record in its entirety, and not solely from the affidavit of defendant’s attorney. The driver of the vehicle in which claimant was a passenger pleaded guilty to a charge of criminally negligent homicide which encompassed an admission that at the time of the accident herein, he operated his vehicle at an unreasonably high.rate of speed while he had a blood alcohol content of approximately .21%, striking another vehicle and killing the sole occupant thereof. These factors and the surrounding circumstances undoubtedly affected the Court of Claims conclusion that the State should have its day in court. Accordingly, granting relief was entirely appropriate.

The order should be modified, on the law, by deleting so much thereof as directed payment of the sum of $500 to claimant’s attorneys, and, as so modified, affirmed, without costs.

1 . Prior to January 1,1976, the State was never required to answer a claim, and all allegations were deemed denied. The requirement to answer is found in the Rules of the Court of Claims (22 NYCRR 1200.7).

2 . Claimant argues that under Barasch v Micucci (49 NY2d 594), a court has no discretion to vacate a default once it determines that the default was caused by a law office failure. In Barasch, the plaintiff failed to serve a complaint within 20 days after the defendant served a demand. We decline to extend the Barasch rule to a defendant seeking to vacate a default judgment entered for failure to answer in light of the substantial differences between a motion to dismiss under CPLR 3012 (subd [b]) and a motion to vacate a default under CPLR 5015.