Claimant brings a motion to "re-open case" after his claim was dismissed by
order of this Court filed on May 29, 2001, for lack of jurisdiction as a result
of the claim having been served by regular mail instead of certified mail,
return receipt requested as required by Court of Claims Act §11. Claimant
never submitted any opposition to defendant's motion to dismiss the claim. In
support of this request, claimant argues that he never received a copy of the
defendant's motion papers until June 6, 2001, well after the motion was heard.
The reason claimant did not timely receive a copy of the motion papers is
because he was transferred from Riverview Correctional Facility to Bare Hill
Correctional Facility. Claimant also advises that although he originally served
his claim by regular mail on December 29, 2000, he sent it by certified mail,
along with a notice of intention and a late notice. To support his position,
claimant has attached a disbursement request for certified mail dated December
27, 2000, and a receipt reflecting payment of postage in the amount of $ .77 and
$1.40 for the certified fee.
Defendant argues that a copy of claimant's re-served claim and other documents
were received by the assistant attorney general on January 11, 2001 by certified
mail. These documents were received after the defendant had made its motion to
dismiss the original claim. This second service, according to defendant, was
not proper because it was also served by certified mail, but without a return
receipt requested, which is not in accordance with Court of Claims Act §11
and therefore, defective service. As a result, claimant has not made any
showing that would warrant reopening the case.
To reopen a case after a default or, in other terms, to vacate claimant's
default in responding to the defendant's motion, claimant must show an excuse
for his default and submit an affidavit setting forth the merits of his case.
(CPLR 5015(a-1)) Claimant fails to meet the requirements in both respects.
First, the reason claimant did not receive a copy of defendant's motion papers
is his failure to keep the Court and defendant advised of his current address.
Uniform Rules of the Court of Claims [22 NYCRR] §206.6(f) requires a
claimant to report changes in address or telephone number to the Clerk of the
Court within ten days.
It is not clear when
claimant was moved, however the clerks' office reflects claimant's address was
not updated until June 21, 2001. Claimant also apparently failed to advise
defendant of his change in address prior to this date.
Although claimant makes references to sending "many letters to the court" he
does not advise of the dates, or whether these letters reflected his change of
address. No copies of any correspondence were attached to his motion papers,
nor did a review of the court file reveal any correspondence received from
The reason claimant did not receive a copy of defendant's motion papers is due
to his own failure to advise of his change of address. As a result, the Court
does not find that his failure to timely receive a copy of the motion papers is
an acceptable excuse for his failure to respond to the motion. (Cf., Dudley v
Steese, 228 AD2d 931; McCleaver v VanFossen, 276 AD2d 603)
Moreover, since claimant re-served the documents by certified mail, without a
return receipt request, he still has failed to comply with the service
requirements of Court of Claims Act §11. (See, Schaeffer v State of New
York, 145 Misc 2d 135, when certified mail is used the failure to request a
return receipt is fatal.) Claimant has also failed to submit anything which
would indicate to the Court that he has a meritorious cause of action.
Accordingly, claimant's motion is DENIED.
The Court considered the following documents in deciding this motion:
Affidavit of Thomas P. Walsh with exhibits attached thereto in
Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney
General in opposition with all exhibits attached