New York State Court of Claims

New York State Court of Claims

MENDOZA v. THE STATE OF NEW YORK, #2004-028-539, Claim No. 108303, Motion No. M-68255


Synopsis


Claimant's application is denied.

Case Information

UID:
2004-028-539
Claimant(s):
ERIC MENDOZA The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Claimant short name:
MENDOZA
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :
The caption of this action is amended sua sponte to reflect the State of New York as the only properly named defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
108303
Motion number(s):
M-68255
Cross-motion number(s):

Judge:
RICHARD E. SISE
Claimant's attorney:
ERIC MENDOZA, pro se
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Joseph F. RomaniAssistant Attorney General
Third-party defendant's attorney:

Signature date:
June 18, 2004
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

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 calendar:


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] [1]). 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] [1]). 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 in installments.

Accordingly, Motion No. M-68255 is denied.


June 18, 2004
Albany, New York

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