Documentation to "My Case"

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------------X LLP/8303
TIBOR GASPARIK,
Plaintiff,
……………………………………………………….………………CV-05-3817 (SJF)
-against-
……………………………………………………………………... NOTICE OF MOTION
STONYBROOK UNIVERSITY,
Defendant.
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PLEASE TAKE NOTICE that upon the annexed declaration of Lori L. Pack, Assistant
Attorney General, dated September 9, 2005, Defendant State University of Stony Brook shall
move this Court before the Honorable Sandra J. Feuerstein, United States District Court Judge,
United States District Court, Eastern District of New York, 100 Federal Plaza, Central Islip, New
York, 11722-4338 on submission, for an order pursuant to Rule 55(c) of the Federal Rules of
Civil Procedure setting aside a default judgment entered against the Defendant by the Clerk of
this Court on September 8, 2005 and for such further relief as may be proper.

Dated: Hauppauge, New York
September 9, 2005

ELIOT SPITZER
Attorney General of the State of New York
Attorney for Defendant

By:______________________________
LORI L. PACK (LLP/8303)
Assistant Attorney General
300 Motor Parkway, Suite 205
Hauppauge, New York 11788
(631) 231-2424

To: Tibor Gasparik, Plaintiff Pro Se
352 Plad Blvd.
Holtsville, N.Y. 11742
(631) 447-2168
____________________________________________________________________________________

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------------X LLP/8303
TIBOR GASPARIK,
Plaintiff,
……………………………………………………………….………CV-05-3817 (SJF)
-against-
……………………………………………………………………… DECLARATION
STONYBROOK UNIVERSITY,
Defendant.
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LORI L. PACK, an attorney duly admitted to practice law before the Courts of the State
of New York, and specifically the United Sates District Court of the Eastern District of New
York, declares the following under penalty of perjury:

1. I am an Assistant Attorney General with the office of Eliot Spitzer, New York State
Attorney General, and I represent the defendant STONY BROOK UNIVERSITY in this matter.

2. This declaration is submitted on behalf of Defendant in support of its motion for an order
setting aside the default judgment entered by the Clerk of this Court on September 8, 2005.

3. A copy of the Summons and Complaint in this action is annexed hereto as Exhibit
“A”. A copy of Defendant’s Amended Answer is annexed hereto as Exhibit “B”. A copy of the
papers constituting the default judgment are annexed hereto as Exhibit “C”.

4. The “Clerk’s Notation of Default” states that the docket entries of the Court
indicate that “defendant, Stony Brook University, was served with the summons and complaint
on August 12, 2005, personally at: Office of University Counsel, 328 Administration Stony
Brook University, Stony Brook, N.Y. 11794-1212.” [See Exhibit “C”, p .4]. There is no
indication that the office of the Attorney General was ever served, nor does this office have any
record of ever being served.

5. New York State CPLR § 307 provides as follows:

(1) Personal service upon the state shall be made by delivering the
summons to an assistant attorney-general at an office of the attorney general
or to the attorney-general within the state.”

(2) Personal service on a state officer sued solely in an official
capacity or state agency, which shall be required to obtain personal
jurisdiction over such an officer or agency, shall be made by (1)
delivering the summons to such officer or to the chief executive
officer of such agency or to a person designated by such chief
executive officer to receive service, or (2) by mailing the summons
by certified mail, return receipt requested, to such officer or to the
chief executive officer of such agency, and by personal service upon
the state in the manner provided by subdivision one of this section.
(emphasis added)

The commentaries included after this section of the CPLR state that

Subdivision 2 was amended by chapter 420 of the laws of 1993. The
memorandum of the Office of Court Administration states that the
"measure [was] designed to make it clear that in all actions and
proceedings brought against State agencies or State officials in their
representative capacities, personal service must be made by serving
both the agency or official and the Attorney-general." Hitchcock v
State (1993, 3d Dept) 193 App Div 2d 1046, 598 NYS2d 576;
Hanley v New York State Executive Dept., Div. for Youth (1992, 3d
Dept) 182 App Div 2d 317, 589 NYS2d 366).

6. Since the summons and complaint was never served upon the Office of the
Attorney General as required by statute, the default judgment should be vacated.

7. Furthermore, F.R.C.P. 55(c) provides that “[F]or good cause shown, the
court may set aside an entry of default and, if a judgment has been entered, may likewise set it
aside in accordance with Rule 60(b).” Plaintiff is pro-se and did not include a telephone number
on the summons and complaint. There are no records of any courtesy phone calls or
correspondence from the Plaintiff prior to his entering a default judgment on September 8, 2005,
twenty seven days after he allegedly served a copy of the summons and complaint upon the state
agency. I filed an answer the day after I first saw the summons and complaint. I received the
default judgment via an ECF e-mail minutes after I filed the answer on ECF. Clearly, there is
good cause to vacate this default judgment.

8. Finally, the entry of a judgment by the Clerk of the Court is improper in this
matter. A clerk’s entry of a judgment is only for cases in which “the plaintiff’s claim against a
defendant is for a sum certain . . . .” The Plaintiff’s claim is that the Defendant discriminated
against him because he is “too conservative”. A judgment in the amount of $300,000.00 could
hardly be considered a “sum certain” in this case. At the very best, it was misleading for
Plaintiff to represent to the Clerk that he was entitled to this judgment under F.R.C.P. 55(b)(1).

WHEREFORE, it is respectfully requested that the default judgment entered by the clerk
in this matter be vacated.

DATED: Hauppauge, New York
September 9, 2005

Respectfully submitted,

ELIOT SPITZER
Attorney General of the
State of New York
Attorney for State Defendants

By: _________________________
LORI L. PACK (LLP/8303)
Assistant Attorney General
300 Motor Parkway-Suite 205
Hauppauge, New York 11788
(631) 231-2424