Plaintiff, the Commissioner of the New York State Department of Agriculture and Markets, sought a default judgment against defendant, alleging that after the agency conducted two audits of the defendant’s retail store, plaintiff imposed fines on defendant for violations of New York’s agricultural laws, and defendant failed to respond. The court found that there was proper service and that the defendant had not responded, but that the plaintiff had failed to prove its claim.
Although the standard for proof of claim is not stringent, the court characterized as “too thin” the Commissioner’s allegations that plaintiff conducted inspections of defendant’s operation and found conditions that violated the law and that pursuant to those inspections, plaintiff imposed penalties of $600 and $1,200. The court next addressed the admissibility of the “thin” evidence presented. A lawyer at the Department of Agriculture and Markets who did not herself do the inspections reviewed the records of the Department and submitted an affidavit. The Commissioner argued that this was permitted by New York civil practice rules, which permit a prima facie case to be made via “an attorney from the office of the attorney general who has or obtains knowledge of such facts through review of state records or otherwise” (CPLR 3215[f]). Although the affiant in this case was not in the attorney general’s office, the Commissioner asserted that she had the authority of the attorney general’s office because of a 1991 memorandum which authorized the Agriculture Department’ s attorneys to “commence and prosecute all new actions to recover civil penalties assesse[d] by [his] Department for violation of the Agriculture and Markets Law.” Because several sections of the Agriculture and Markets Law allow the Attorney General to either bring an action himself or authorize the Counsel of the Department to bring such action, the Attorney General in 1991 exercised his discretion to authorize the Agriculture and Markets Department itself to bring enforcement actions.
The court rejected the Commissioner’s argument, stating,
Nowhere does the Memo state that then Attorney General Abrams was appointing Agriculture and Markets Department attorneys as assistant attorney generals in perpetuity. . . Indeed, it would take an affirmative act of the Attorney General to appoint Department counsel as assistant attorney generals (Executive Law §62).
However, the word “appoint” is not even used in the memorandum. To interpret the Memo as appointing Department counsel as assistant attorney generals would usurp the Attorney General’s power. More importantly, to permit or to condone such a usurpation would be an insult to the dignity of the office of Attorney General. The court declines to read the Memo in such a manner.
The court also noted that even if the Memo could be read this way, N.Y. Public Officers Law §10 requires “[e]very officer shall take and file the oath of office required by law before he shall be entitled to enter upon the discharge of any of his official duties.” The Commissioner did not include such an oath, so there is no indication that “plaintiff’s lawyers are vested with the power to act as assistant attorney generals.“ Because proof of the facts is insufficient, no default judgment can be entered. Ball v. Kpshah NY, 2023 NYLJ LEXIS 626 (N.Y. S.Ct. Mar. 16, 2023).
