New York State Court of Claims

New York State Court of Claims

HOM v. THE STATE OF NEW YORK, #2004-028-523, Claim No. 107886, Motion No. M-67768


Synopsis


Case Information

UID:
2004-028-523
Claimant(s):
GEORGE HOM
Claimant short name:
HOM
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
107886
Motion number(s):
M-67768
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
GEORGE HOM, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Ralph PernickAssistant Attorney General
Third-party defendant's attorney:

Signature date:
April 26, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant's application to vacate the Court's prior Order:

1) Notice of Motion and Supporting Affidavit of George Hom filed December 12, 2003;

2) Affirmation in Opposition of Assistant Attorney General Ralph Pernick filed December 11, 2003.


By order filed July 2, 2003 Claimant's application for a waiver of the Court's filing fee was denied and Claimant was afforded 120 days to pay the filing fee or the Claim would be closed. Claimant failed to timely pay the filing fee and the Claim was closed.

Claimant seeks to vacate his default based upon his recuperation from injuries sustained in an automobile accident on May 22, 2003 and his failure to properly diary the deadline to pay the filing fee. Defendant opposes the application.

CPLR 5015 (a) authorizes a court to vacate an order or its judgment "upon such terms as may be just" on motion of any interested party with such notice as the court may direct, based upon five listed grounds. Moreover, "[t]he court has inherent discretionary power to vacate its judgments and orders for good cause shown, not limited by the CPLR 5015 [a] list" (Siegel NY Prac § 426, at 693 [3d ed]).

Viewing Claimant's application pursuant to CPLR 5015(a)(1), the excusable default section, Claimant must present a reasonable excuse for the default and claimant must demonstrate that a meritorious cause of action exists (see e.g. Cippitelli v Town of Niskayuna, 277 AD2d 540; Tiger v Town of Bolton, 150 AD2d 889, 890). Assuming arguendo Claimant has tendered a reasonable excuse for the default[1], Claimant has totally failed to address whether he has a meritorious cause of action. In this regard, the Court notes that it does not have jurisdiction over the individuals named as Defendants (see Court of Claims Act § 9). Moreover, to the extent Claimant alleges "violations actionable under Article 78 of the CPLR" (see Notice of Intention To File a Claim) or for "civil rights violations under 42 USC § 1983" (id.) this Court likewise lacks jurisdiction (see e.g. Safety Group No. 194 v State of New York, 298 AD2d 785 [Article 78 proceedings]; Brown v State of New York, 89 NY2d 172 [42 USC § 1983 actions]). The Court further notes that the doctrine of judicial immunity would appear to be an impediment to this action.

Accordingly, Claimant's application is denied.



April 26, 2004
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims





[1] The Court points out that Claimant's reliance on his recuperation is misplaced as his automobile accident did not preclude him in the first instance from making the fee waiver application (CPLR 1101[d]) and as Defendant points out Claimant actively litigated other matters during his convalescence (Pernick Affirmation ¶ 3).