Spickerman v. State

Casey, J. (dissenting).

We respectfully dissent. We cannot agree with the majority’s conclusion that the State’s default should be excused. In Barasch v Micucci (49 NY2d 594, 599), the court held that in order to avoid dismissal for failure timely to serve a complaint pursuant to CPLR 3012 (subd [b]), the plaintiff must demonstrate a reasonable excuse for the delay and that the claim has legal merit. Similarly, in order to vacate a default judgment under CPLR 5015 (subd [a]), the defendant must also show a valid excuse and a meritorious defense (see, e.g., Matter of Hanover Sand & Gravel v New York State Thruway Auth., 65 AD2d 863, 864). The court held in Barasch that those excuses which may be roughly categorized as “law office failures” cannot, as a matter of law, serve as a reasonable excuse for the plaintiff’s delay in serving his complaint. We see no basis for applying a different rule for the valid *63excuse required to open a defendant’s default (Mandy Pear Ltd. v Duca Realty Corp., 81 AD2d 829; Bruno v Village of Port Chester, 77 AD2d 580, app dsmd 51 NY2d 769; see Natemeier v Heim, 81 AD2d 1008; but see Cockfield v Apotheker, 81 AD2d 651). Moreover, irrespective of Barasch, as noted in Marine Midland Bank v Tooker (78 AD2d 755), “this court has consistently held that such law office failures do not constitute a valid excuse for default”. Accordingly, since the excuse offered by the State is a classic law office failure, its default may not be excused.

In our view, the critical issue is whether claimant is entitled to a default judgment. Prior to 1976, the Rules of the Court of Claims provided that the State was not required to answer and, accordingly, the State’s failure to answer could not be considered a default (see Taylor v State of New York, 302 NY 177, 188). As noted by the majority, these rules, which were amended in 1976, now require the State to answer (22 NYCRR 1200.7), and in light of this change, the State’s failure to answer must now be considered a default. Such default, however, does not automatically entitle a claimant to a judgment, for subdivision 1 of section 12 of the Court of Claims Act precludes the granting of a judgment in the absence of “such legal evidence as would establish liability against an individual or corporation in a court of law or equity”. In our view, therefore, while the State’s failure to answer deprived it of the right to defend the claim, a judgment may be entered on the default only after claimant proves by “legal evidence” that he has a valid claim against the State. Such a procedure balances the need to impose sanctions for a party’s default with the need.to protect the State from baseless claims, and is similar to the procedure in Federal courts under subdivision (e) of rule 55 of the Federal Rules of Civil Procedure (see Ann., 55 ALR Fed 190). The State’s participation in the matter following its default would be limited to those procedures contained in CPLR 3215.

The order should be reversed and the matter remitted to the Court of Claims to afford claimant the opportunity to establish his claim by legal evidence.

*64Sweeney and Weiss, JJ., concur with Kane, J.; Mahoney, P. J., and Casey, J., dissent and vote to reverse in an opinion by Casey, J.

Order 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.