New York State Court of Claims

New York State Court of Claims

GARCIA v. New York, #2000-015-024, Claim No. 100084, Motion No. M-61114


Synopsis


A party who defaulted in opposing a motion may only vacate that default upon offering a reasonable excuse for the lack of opposition and a potentially meritorious claim.

Case Information

UID:
2000-015-024
Claimant(s):
MELINTON GARCIA
Claimant short name:
GARCIA
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
100084
Motion number(s):
M-61114
Cross-motion number(s):

Judge:
FRANCIS T. COLLINS
Claimant's attorney:
Melinton Garcia, Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Joel L. Marmelstein, EsquireAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 6, 2000
City:
Saratoga Springs
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The motion of the claimant for an order pursuant to CPLR 2221 vacating a decision and order of this Court filed on November 24, 1999 which granted the defendant's prior motion to dismiss the claim is denied. In a claim filed on April 1, 1999 claimant, an inmate appearing pro se, seeks to recover the sum of $32.75 together with postage in the amount of $6.00 as the value of a Sound Design radio allegedly lost through the negligence of employees of the Department of Correctional Services at the package rooms of the Mohawk Correctional Facility and the Clinton Correctional Facility on September 29, 1998. The defendant made a motion to dismiss the claim for lack of personal jurisdiction because no claim was served and filed and no notice of intention to file a claim was served within 90 days of the accrual of the cause of action. The motion was granted based upon claimant's default in opposing the motion. Claimant now seeks relief pursuant to CPLR 2221 upon the ground that the Court should have applied the holding in Espinal v State of New York, 159 Misc 2d 1051 and denied the prior dismissal motion.

The law is settled that a party who defaulted in opposing a motion may only vacate that default upon offering a reasonable excuse for the lack of opposition and a potentially meritorious claim (Lovario v Vuotto, _____ AD2d ____, 697 NYS2d 673; Agway, Inc AAP New England v Chichester, 259 AD2d 880). Claimant has offered no excuse for his failure to oppose the prior dismissal motion requiring the denial of this motion.


April 6, 2000
Saratoga Springs, New York

HON. FRANCIS T. COLLINS
Judge of the Court of Claims


The Court considered the following papers:
  1. Notice of motion dated January 20, 2000;
  2. Affidavit of Melinton Garcia sworn to January 20, 2000;
  3. Affirmation in opposition of Joel L. Marmelstein dated February 7, 2000, with exhibits;
  4. Reply affidavit of Melinton Garcia sworn to February 10, 2000, with Exhibit.