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
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
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
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.