New York State Court of Claims

New York State Court of Claims

PHILLIPS v. THE STATE OF NEW YORK, #2000-011-593, Claim No. 98144, Motion No. M-62064


Synopsis


Claimants motion for relief for a default judgment pursuant to CPLR 5015(a)(1) is granted.

Case Information

UID:
2000-011-593
Claimant(s):
JERRY PHILLIPS
Claimant short name:
PHILLIPS
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
98144
Motion number(s):
M-62064
Cross-motion number(s):

Judge:
THOMAS J. McNAMARA
Claimant's attorney:
DELORENZO, PASQUARIELLO & WEISKOPF, P.C.(Paul E. DeLorenzo, Esq., of counsel)
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL(Glenn C. King, Esq., Staff Attorney)
Third-party defendant's attorney:

Signature date:
October 16, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


Claimant has made a motion for relief from a default judgment pursuant to CPLR 5015(a)(1). Under CPLR 5015(a)(1), the court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any interested person with such notice as the court may direct, upon the ground of "[e]xcusable default, if such motion is made within one year after service of a copy of the judgment or order with written notice of its entry upon the moving party."

When examining a CPLR 5015(a)(1) motion, trial judges are permitted some latitude in applying the appropriate rules relating to the opening of a default judgment in a particular case, and a liberal construction is called for (Fusco v Malcolm, 50 AD2d 685). To warrant exercise of the court's discretionary power to vacate orders upon the ground of excusable default, the defaulting party must demonstrate merit to his position, so that the discretion of the court will not be used to revitalize worthless claims, and must present acceptable excuse for default (Suggs v Hrabb, 91 AD2d 819).

Here, Claimant has demonstrated a meritorious claim by alleging that he was held in custody by the Department of Correctional Services for a period of eight days beyond the maximum expiration of his term (Waterman v State of New York, 1 AD2d 235, affd 2 NY2d 803; cf. Middleton v State of New York, 54 AD2d 450). Furthermore, Claimant's excuse that his action was dismissed when he failed to appear for trial due to a lack of communication between he and his attorney is reasonable for CPLR 5015(a)(1) application.

Inasmuch as the motion was timely made and the moving party has presented an acceptable excuse for the default and has shown merit to his claim, the motion is granted. The clerk is directed to restore the claim to the calendar.

October 16, 2000
Saratoga Springs, New York

HON. THOMAS J. MCNAMARA
Judge of the Court of Claims





Papers Submitted:

  1. Notice of Motion dated July 3, 2000.
  2. Affidavit in Support of Paul E. DeLorenzo, Esq., sworn to the 3rd day of July, 2000.
  3. Affidavit of Jerry Phillips sworn to the 29th day of June, 2000.
  4. Affirmation in Opposition of Glenn C. King, Esq., dated August 16, 2000.