New York State Court of Claims

New York State Court of Claims

WALSH v. STATE OF NEW YORK, #2002-018-132, Claim No. 103442, Motion No. M-63639


Synopsis


Claimant's motion to reopen claim is denied based upon claimant's failure to comply with

Uniform Rules of the Court of Claims [22 NYCRR] §206.6(f), and Court of Claims Act §11.

Case Information

UID:
2002-018-132
Claimant(s):
THOMAS P. WALSH The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Claimant short name:
WALSH
Footnote (claimant name) :

Defendant(s):
STATE OF NEW YORK
Footnote (defendant name) :
The Court has sua sponte amended the caption to reflect the State of New York as the only proper defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103442
Motion number(s):
M-63639
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
THOMAS P. WALSHPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
May 6, 2002
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision


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.[1] 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 claimant.

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.


May 6, 2002
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


The Court considered the following documents in deciding this motion:

Notice of Motion................................................................................................1

Affidavit of Thomas P. Walsh with exhibits attached thereto in support..........2

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

General in opposition with all exhibits attached thereto........................3



[1] As of April 8, 2002, the rules require only attorneys and pro se claimants to communicate any change of address or telephone number to the clerk of the court within 10 days.