The following papers were read and considered on claimant's motion to restore
his claims to the trial calendar: Notice of Motion, sworn to March 22 and filed
April 2, 2001; Affidavit in Support of Motion of Gregory Giannattasio, pro
se, sworn to March 22 and filed April 2, 2001, with annexed Exhibit A;
Affirmation in Opposition of Frederick H. McGown, III, Esq., AAG, dated and
filed April 19, 2001; Claim No. 97741, dated January 22 and filed February 2,
1998; and Claim No. 100199, dated December 16, 1998 and filed April, 19,
1999. These two claims were dismissed by this Court by orders filed December 30,
1999 after claimant Gregory Giannattsio ("claimant") failed to appear for a
calendar call held on December 16, 1999, or to advise the Court of his intention
to continue the actions. The claims emanate from two separate incidents
supposedly occurring in Department of Correctional Services ("DOCS") vehicles in
which claimant was being transported. In Claim No. 97741, claimant alleges that
on January 30, 1997 he was trapped in an evidently broken-down prison bus for
over three hours without heat or the opportunity to relieve himself (Claim No.
97741, dated January 22 and filed February 2, 1998, ["claim 97741"] ¶¶
7-9 ). Prior to the stop, claimant also alleges, the van became full of carbon
monoxide smoke (id., at ¶ 5). He seeks $500,000 for "negligence and
intentional infliction of emotional distress" (id., at ¶ 11). In
Claim No. 100199, he seeks damages for personal injuries he allegedly sustained
when a DOCS van struck the back of another vehicle while transporting him to
Ulster Correctional Facility (Claim No. 100199, dated December 16, 1998 and
filed April, 19, 1999 ["claim 100199"], ¶¶ 2-6).
Claimant informed the Court of a change of address by letter received March 4,
1999. The letter explained that he was being released on parole from Watertown
Correctional Facility on March 3, 1999, and that his new address would be "29
Gold Street, Valley Stream, New York 11580." Approximately eight months later,
the Court informed claimant by letter dated November 10, 1999 that his claims
would be called at an upcoming calendar call to be held on December 16, 1999.
Claimant was advised either to notify the Court by mail of his intention to
continue the actions or to be present at the Court on December 16, 1999.
Failure to reply, or appear, he was warned, might result in the dismissal of his
Claimant did not respond to the letter or show up at the calendar call and,
accordingly, defendant State of New York ("defendant" or "the State") moved for
dismissal pursuant to 22 NYCRR 206.15. By order filed December 30, 1999, the
Court granted the State's motion and dismissed the claims for claimant's failure
to appear (Giannattasio v State of New York, Ct Cl, unreported orders
filed December 30, 1999, Read, P. J., Claim Nos. 97741 and 100199).
On December 22, 2000--nearly a year later--the Court received a letter from
claimant asking about the status of his claims. This letter was addressed from
the Nassau County Jail in East Meadow. The Court updated claimant's address in
its database and by letter dated January 30, 2001 informed him that his claims
had been dismissed. On April 2, 2001, claimant filed this motion to restore his
claims to the trial calendar
Claimant explains that during the relevant time period he was, indeed, living
at the address that he gave the Court upon his release from Watertown
Correctional Facility--29 Gold Street, Valley Stream, New York 11580--and that
he remained at that address until several months after the orders dismissing the
claims were rendered (Affidavit in Support of Motion of Gregory Giannattasio,
pro se, sworn to March 22 and filed April 2, 2001, with annexed Exhibit A
["Giannattasio Aff."], ¶ 5). Claimant also states that he telephoned the
Court on at least one occasion to inquire about his claims' status (Giannattasio
Aff., ¶ 6). Claimant insists that he never received any notice that his
claims had been scheduled for the calendar call (Giannattasio Aff., ¶ 7);
therefore, he argues that the cause for his default "lays upon the . . .
‘lack of due service' " (Giannattasio Aff., ¶ 9), apparently
referring to his alleged failure to receive notice of the calendar call.
The State opposes claimant's motion arguing that the claims should not be
restored because claimant has failed to provide a reasonable excuse for his
default and more than one year has passed since the claims were dismissed
(Affirmation in Opposition of Frederick H. McGown, III, Esq., AAG, dated and
filed April 19, 2001 ["McGown Aff."], ¶ 3). Defendant notes that while
claimant was outside of custody he did not show any interest in his claims and
that he failed to inform either the Court of Claims or the Office of the
Attorney-General of any change in mailing address (McGown Aff., ¶ 4). The
State additionally argues that claimant has failed to provide an affidavit of
merit for either claim (McGowan Aff., ¶¶ 5-6).
Court of Claims Act § 19 (3) provides that "[c]laims may be dismissed for
failure to appear or prosecute or be restored to the calender for good cause
shown, in the discretion of the court" (see, 22 NYCRR 206.15; see
also, CPLR 5015 [a] ). Where there is no evidence of willfulness or
inattention on the part of the party in default, lost or misplaced mail
has been deemed a reasonable excuse (see, Chase Manhattan Automotive
Fin. Corp. v Allstate Ins. Co., 272 AD2d 772; Wilcox v U-Haul Co.,
256 AD2d 973; Hann v Morrison, 247 AD2d 706).
Here, claimant avers that he never received notice of the calendar call
although he was admittedly living at the address to which the Court sent the
notice (Giannattasio Aff., ¶ 9).
Assuming for the sake of this motion that claimant did not receive the notice
and that the nearly 15-month delay between dismissal and this motion is
reasonable, he still must demonstrate both a reasonable excuse and
meritorious cause of action when seeking to vacate an order based upon an
excusable default (see
, Cippitelli v Town of Niskayuna
, 277 AD2d
540; Tiger v Town of Bolton
, 150 AD2d 889, 890).
So much of claim 97741 as alleges that claimant inhaled carbon monoxide while
sitting in the DOCS van and claim 100199, which alleges that he was injured
during a DOCS van collision, are encompassed by the statutory requirements of
New York's no-fault insurance law (see
, Insurance Law § 5101, et
.). As a passenger in the DOCS vehicle whose alleged injuries arose "out
of the use or operation of a motor vehicle" (Insurance Law § 5102 [b]),
claimant has a burden of making a threshold showing of serious injury as defined
by Insurance Law 5102 (d)
Licari v Elliott
, 57 NY2d 230; Pierre v State of New York
, Ct Cl,
Marin J., UID # 2000-016-112).
Here, the most generous reading of claimant's conclusory and vague statements
of his injuries fails to make this threshold showing (see, claim 97741,
¶¶ 13-16; claim 100199, ¶¶ 15-17 ["experiences a
conglomeration of medical problems which appear to be directly related to [the]
vehicle accident"]). Claimant has provided nothing objective to substantiate
any injuries, only nebulous statements (see, e.g., Pierre v State of New
York, supra; Notarfrancesco v State of New York, Ct CL,
Ruderman J., UID # 2001-010-122; Weinstein v State of New York, CT CL,
Marin, J., UID # 2000-016-075; compare, Caro v State of New York,
CT CL, Nadel, J., UID # 2001-014-511 [physician's affidavit establishes claimant
has sustained serious injury, merit found]).
The acts alleged in the remaining portions of claim 97741 do not rise to the
level of pleading an intentional infliction of emotional distress. That is, the
acts complained of do not approach conduct that was "‘so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community'" (Murphy v American Home Prods. Corp., 58 NY2d 293, 303,
quoting Restatement [Second] of Torts § 46, comment d). Nor does the Court
find a meritorious cause of action stated within the remainder of that claim.
Based on the foregoing, the Court denies claimant's motion to restore his
claims to the trial calendar.