New York State Court of Claims

New York State Court of Claims

VALLEJO v. THE STATE OF NEW YORK, #2002-005-559, Claim Nos. 99574, 100015, Motion No. M-65973


Claimant's motion for restoration of his claims is granted and motion for default judgment against the Defendant is denied.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
99574, 100015
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Anthony Vallejo,Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Thomas G. Ramsay, Assistant Attorney General
Third-party defendant's attorney:

Signature date:
February 6, 2003

Official citation:

Appellate results:

See also (multicaptioned case)


On November 13, 2002, the following papers, numbered 1 to 5, were read on motion by Claimant for restoration of the claims to the calendar:
  1. Motion/Affidavit and Exhibits Annexed
  2. Opposing Affirmation
3, 4, 5 Filed Papers: Claims, Order in Motion No. M-63991

Upon the foregoing papers, this motion is granted to the extent noted and otherwise denied.

The Court has before it a sworn document entitled Default Judgment, which appears to seek an order directing restoration of these claims and the entry of judgment in favor of Claimant. The primary remedy that Claimant seeks is restoration of the claims to the calendar.

The Defendant opposes the relief sought, asserting, inter alia, that it received no motion papers, but simply the aforementioned document.

Some confusion also exists because there are two claims listed on the caption of Claimant's papers, one of which has the name of Anthony Vallejo as Claimant, and the other having the name of Placido Lopez. I do note a Stipulated Order in the Court's files, filed on May 4, 2000, addressing both claims herein, both utilizing the Claimant's name as Anthony Vallejo, signed by the Assistant Attorney General appearing and by Claimant's former counsel, and so-ordered by me. This order joined these two claims for trial without consolidation. For purposes of this motion, I will address both claims before me as if brought by Anthony Vallejo.

By order dated October 22, 2001, in Motion No. M-63991, I granted Claimant's former counsel's application and ordered that: (1) Claimant's counsel was permitted to withdraw as attorney of record in both claims upon service of that order; (2) Claimant had 45 days from service upon him of a file-stamped copy of that order to notify the Clerk of the Court and the Defendant in writing of his intention to proceed pro se, or to have a notice of appearance by his new attorney filed; and (3) specifically directed that "If Claimant fail[ed] to appear pro se or by his attorney within the said 45-day period, the claims herein w[ould] be deemed dismissed for his default (22 NYCRR 206.15), and no further order of this Court w[ould] be required."

Claimant's counsel filed an affidavit swearing to service of the order on November 26, 2001. Claimant never responded to or contacted the Court, and both claims were thereafter dismissed, in accordance with the Order in Motion No. M-63991, on January 16, 2002.

Claimant now seeks to restore the claims to the calendar. As reasons for his failure to contact the court and for his prolonged delay in seeking this relief, Claimant alleges that he is illiterate, that he was at Attica Correctional Facility and was attacked and assaulted by another inmate on two separate occasions, that he was incapable of responding because of his mental condition, that he has been transferred on a number of occasions and had limited access to inmate law clerks and facility law libraries, and that the default or tardiness of his response to the Court's order should not be held against him and that he should not be penalized for circumstances that were beyond his control. Claimant appends three exhibits, one entitled Academic Education Summary Profile, and the other two reflecting a State Medication Education Program for Placido Lopez (for purposes of this motion a/k/a Anthony Vallejo) for a drug named zyprexa and what appears to be a description of that medication, all presumably to show his alleged illiteracy and mental condition. From those documents alone, I cannot ascertain whether Claimant's purported illiteracy and/or mental condition necessarily exists.

Claimant now wishes to proceed, and unless he is able to retain another attorney, would pursue these claims, pro se, and thus seeks my discretion, relying primarily upon Court of Claims Act §19(3). I note that neither the dates and times of the alleged facility transfers, nor the alleged assaults, nor the dates and times of his medications and the prescriptions thereof, are specified. There is little to substantiate the allegations made for his excuse in failing to contact the court for nearly 11 months after he was served with the order, and some nine months after the claims were dismissed.

Nonetheless, review of Claim No. 99574 reveals allegations of an assault with a screwdriver upon Claimant by a fellow inmate at Attica Correctional Facility on or about November 12, 1998. My review of Claim No. 100015 reveals allegations of an assault upon Claimant on or about January 15, 1999, by the same fellow inmate who had previously threatened Claimant and had allegedly assaulted Claimant on November 12, 1998, to wit, the assault which formed the basis of the allegations in Claim No. 99574. Given the alleged prior assault by the same inmate, I find that the allegations of Claim No. 100015, if proven, assert a cause of action that has the appearance of meritoriousness (Matter of Santana v New York State Thruway Auth., 92 Misc 2d 1, 11), and I am inclined to exercise my discretion to allow restoration of Claim No. 100015 to the calendar. Court of Claims rules (22 NYCRR 206.15) contemplate restoration when a motion or notice shows sufficient reason why an order of dismissal should be vacated and the claim(s) restored. Claimant has done so, albeit barely. On the other hand, there is no appearance of merit to Claim No. 99574, with no allegations of any cognizable cause of action sounding in negligence by the Defendant. While these two claims had previously been joined for trial, but not consolidated, in the exercise of my discretion I restore Claim No. 100015 to the calendar, but decline to do so for Claim No. 99574.

Thus, I grant Claimant's application to the extent that Claim No. 100015 is hereby restored to the calendar, and the Clerk of the Court is directed to place it on the appropriate inmate pro se calendar. To the extent that the papers herein seek a default judgment against the Defendant it is denied.

February 6, 2003
Rochester, New York

Judge of the Court of Claims