New York State Court of Claims

New York State Court of Claims

WEBB v. STATE OF NEW YORK, #2004-018-275, Claim No. 107442, Motion No. M-67181


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
By: JOEL L. MARMELSTEIN, ESQUIREAssistant Attorney General
Third-party defendant's attorney:

Signature date:
January 8, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings a motion seeking an order vacating a prior Decision and Order (M-

66620) of this Court in which defendant's motion to dismiss the claim was granted. That motion was returnable on May 7, 2003. The Court did not receive a copy of claimant's responding papers to that motion. Claimant now argues that the order should be vacated so that the Court can consider his response to defendant's motion to dismiss. Claimant asserts that he submitted his response on April 17, 2003 by depositing it in a mail depository at Riverview Correctional Facility but that it apparently was not mailed, or the Clerk of this Court "may have misplaced the [m]otion" (claimant's affidavit ¶¶ 2 and 9). Claimant further argues that the Department of Correctional Services had an interest in withholding his response to defendant's motion.

Defendant, in response, argues that this motion is more in line with a motion to renew or reargue pursuant to CPLR 2221; and that in any event, the Court's prior Decision and Order should stand.

The Court finds that claimant has properly brought a motion to vacate his default pursuant to CPLR 5015(a) because of his failure to answer defendant's motion to dismiss. Pursuant to CPLR 5015(a) a court which rendered a judgment or order may relieve a party from it for an excusable default if the motion to vacate is made within one year after service of the judgment or order. In bringing the motion it is incumbent on the movant to show that (1) he has an excuse for his default, and (2) he has a meritorious claim or defense (see Yushavayev v Kopelman, 307 AD2d 996; Paulucci v Casa De Cuzzi, Inc., 272 AD2d 594).

Claimant asserts that the reason for his default is the Department of Correctional Services failure to mail his responding papers, and that he placed the responding papers in an "authorized depository of the United States Postal Service" at Riverview Correctional Facility (claimant's affidavit ¶2). Apparently a copy of claimant's responding papers were sent to defendant; however, the Court's copy was never received at the Clerk's Office. Claimant has attached a copy of an affidavit of service dated April 17, 2003 indicating that he sent a "Reply to Motion to Dismiss" to the Court of Claims as well as to defendant. Based upon the claimant's submissions, the Court finds that he had a reasonable excuse for his default. However, claimant has not provided the necessary affidavit indicating a meritorious defense to defendant's motion to dismiss.

Defendant's motion to dismiss was based upon claimant's failure to properly serve the claim on defendant in accordance with Court of Claims Act §§ 10 and 11; specifically, that the claim was not served by certified mail return receipt requested, or personal service as required by Court of Claims Act § 11(a). Defendant submitted a copy of the envelope in which the claim was received with the motion to dismiss, however, the copy was illegible. Defendant has submitted another copy with their opposition to this motion which indicates that certified mail, return receipt requested was not used. Despite claimant's assertion in his "Reply to Motion to Dismiss" that the claim was served by certified mail return receipt requested, he submits no proof of such mailing, such as the signed return receipt. Since the requirements for service in this Court are jurisdictional and strictly construed, and the failure to properly serve cannot be ignored or corrected, the claim was properly dismissed (see Byrne v State of New York, 104 AD2d 782, 783, lv denied 64 NY2d 607; Bogel v State of New York, 175 AD2d 493, 494).

Accordingly, based upon the foregoing claimant's motion is DENIED.

January 8, 2004
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding this motion:

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

Affidavit of Freeman Webb, in support, with exhibits attached thereto...............2

Affirmation of Joel L. Marmelstein, Esquire, Assistant Attorney

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

Reply affidavit of Freeman Webb, in support, with exhibit attached thereto.......4