The following papers were read and considered on claimant's motion to restore
his claim to the trial calendar pursuant to 22 NYCRR 206.15: Notice of Motion,
dated April 19 and filed April 26, 2001; Affidavit in Support of Angel Torres,
pro se, dated April 19 and filed April 26, 2001; Letter Response of Susan
J. Pogoda, Esq., AAG, dated and received May 21, 2001; and the claim, verified
November 22 and filed December 24, 1996.
Claimant Angel Torres ("claimant") filed this claim on December 24, 1996,
alleging that defendant State of New York ("defendant" or "the State") is liable
for injuries he sustained during an assault by three or four unknown inmates
while he was a detainee at "C-95, Rikers Island" (claim, verified November 22
and filed December 24, 1996 ["claim"], ¶
The claim avers that the attack was
caused by the neglect and inattentive performance of "N.Y.C. correction officers
and officials" (claim, ¶ 2). Defendant never filed an answer to the claim
and states in its letter response that it has no record of ever having been
served with the claim (Letter Response of Susan J. Pogoda, Esq., AAG, dated and
received May 21, 2001 ["Pogoda Letter"]).
The claim was called for a calendar call held on February 27, 2001, and
claimant failed to appear or to communicate to the Court his intention to
continue the action; therefore, the claim was dismissed pursuant to 22 NYCRR
206.15 (Torres v State of New York, Ct CL, unreported order filed March
29, 2001, Read, P.J., Claim No. 95365). Claimant now moves to restore his
claim, explaining that he did not receive the Court's notice of the calendar
call until March 15, 2001 because he had been detained at Rikers Island on
February 20, 2001 on a parole violation and his mail had not been forwarded
(Affidavit in Support of Angel Torres, pro se, dated April 19 and filed
April 26, 2001, ¶ 4). Defendant opposes the motion arguing that the Court
lacks personal jurisdiction over the State because the claim was never served
upon the Attorney-General, and that the Court lacks subject matter jurisdiction
over the claim itself (Pogoda Letter).
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] ). Besides presenting a reasonable excuse for the
default, claimant must demonstrate that a meritorious cause of action exists
(see, e.g., Cippitelli v Town of Niskayuna, 277 AD2d 540;
Tiger v Town of Bolton, 150 AD2d 889, 890). Here, because the
allegations of the claim do not state a cause of action against the State,
claimant cannot make such a showing.
The jurisdiction of the Court of Claims is limited to that prescribed by
statute and this Court does not have jurisdiction over facilities owned and
operated by the City of New York (see,
Court of Claims Act § 9).
Rikers Island is such a facility; therefore, the Court of Claims does not
possess subject matter jurisdiction to entertain the claim (see
v State of New York
, Ct Cl, Marin, J., UID #
Accordingly, the Court denies
claimant's motion to restore his claim to the trial calendar.