The following papers were read and considered on Claimant's motion for an order
to vacate a prior order dismissing the Claim and to restore it to the Court's
1. Notice of Motion and Supporting Affidavit of Eric Mendoza (Mendoza
Affidavit) filed March 29, 2004;
2. Affirmation in Opposition of Assistant Attorney General Joseph F. Romani
(Romani Opposition) filed April 7, 2004 with annexed Exhibits A-B;
Filed Papers: Claim and Verified Answer. Mendoza v Michael McGinnis,
Supt. Southport Corr., Ct Cl, unreported order filed October 3, 2003,
Sise, J., Claim No. 108303.
By order filed October 3, 2003, the Court denied Claimant's application for a
reduction of the statutory filing fee and directed that payment of the full fee
be made within 120 days. On February 11, 2004 the Chief Clerk closed the Claim
upon Claimant's failure to pay the statutory filing fee as directed. Claimant
now seeks to vacate the prior order and Defendant opposes the application.
Court of Claims Act § 19 (3) provides that "[c]laims may be dismissed for
failure to appear or prosecute or be restored to the calender for good cause
shown, in the discretion of the court" (see 22 NYCRR 206.15; see
also,CPLR 5015 [a] ). A party may be relieved of a prior judgment or
order on the ground of "excusable default" only if a motion for this relief is
made within one year after the party was served with the order or judgment (CPLR
5015 [a] ). Courts have held that, in some circumstances, they have an
inherent power to vacate a judgment "in the interest of justice" even after the
one-year period has expired (see e.g. Molesky v Molesky, 255 AD2d 821).
Here, Claimant has timely made his application to vacate his default prior to
the expiration of the one year period. As such, the Court exercises its
discretion to consider the application.
Claimant's excuses that he was confined in SHU, lacked access to legal
resources, and has limited English language skills such that he "misunderstood"
the Order of the Court denying his application do not constitute an excusable
default (see e.g. Rodrigues v State of New York, 143 AD2d 993 [inability
to read or write English is not a viable excuse]; Nieves v State of New
York, Ct Cl, Judge Corbett, Claim No. NONE, Motion No. M-65267, UID
#2002-005-537 [ignorance of law and lack of access to legal resources]; and
Nunez v State of New York, Ct Cl, Judge Corbett, Claim No. NONE, Motion
No. M-60610, UID #2000-005-568). Claimant's misunderstanding is belied by the
letter he sent to the Court dated October 7, 2003 - four days after the denial
of his fee application - in which he requested to pay the statutory filing fee
Accordingly, Motion No. M-68255 is denied.