New York State Court of Claims

New York State Court of Claims

TISLON v. THE STATE OF NEW YORK, #2004-031-063, , Motion No. M-67762


In light of Claimant's failure to serve motion papers on Defendant, Defendant's motion to vacate previous order granting permission to file late claim is granted

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:
New York State Attorney General
BY: TIMOTHY P. MULVEY, ESQ.Assistant Attorney General
Third-party defendant's attorney:

Signature date:
June 15, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The following papers were read on motion by Defendant, pursuant to CPLR 2221, to vacate a previous decision and order which granted Claimant permission to file a late claim:
1) Notice of Motion, filed December 5, 2003;
2) Affirmation of Timothy P. Mulvey, dated December 3, 2003, with attached exhibits;
3) Claimant's "Pro Se Memorandum of Law in Support of Claim for Damages," dated January 20, 2004. This is Defendant's motion, pursuant to CPLR 2221, to vacate a previous decision and order of this Court. That decision and order, filed on November 3, 2003, granted the motion of Anthony Tislon (M-66760) for permission to file a late claim pursuant to § 10(6) of the Court of Claims Act (the "CCA"). In the proposed claim underlying that initial motion, Mr. Tislon sought to recover $75,000.00 for injuries he sustained when he was assaulted by another inmate at Five Points Correctional Facility on February 5, 2001. Claimant also alleged that Defendant negligently failed to protect him from subsequent assaults, that his eighth amendment rights were violated and that his right to due process was violated in his Tier II disciplinary hearing relating to that February 5, 2001 incident.

Due, in part, to Defendant's failure to respond to that earlier motion, I granted Claimant's motion to file a late claim only for the causes of action relating to Defendant's alleged negligence in failing to protect him from the assault and for alleged due process violations at the subsequent disciplinary hearing.

With this motion, Defendant argues that the previous decision and order (M-66760) should be vacated because Claimant never served his motion papers on Defendant. Claimant has submitted what purports to be opposition to Defendant's motion, however, Claimant's submission fails to contest, or even address, Defendant's contention that Defendant was never served with the motion papers for motion M-66760.

I find that Defendant has demonstrated an adequate basis for vacating the Court's previous decision and order. However, granting such relief does present problems logistically. Although Claimant apparently failed to serve Defendant with his motion papers, the Attorney General's Office was given notice of the pending motion in a May 5, 2003 letter from the Chief Clerk of the Court of Claims. Though I understand that this notice may not have found its way to the specific Assistant Attorney General currently assigned to this motion, and find no fault in his handling of this matter, had Defendant not ignored this notice and let the motion go unanswered, much time and effort would have been saved. And this loss of time is not without potential prejudice to Claimant. Because the action accrued on February 5, 2001, it is arguably too late at this point for Claimant to file another motion for permission to file a late claim [see CCA § 10(6)]. Also, pursuant to the previous decision and order, on December 11, 2003, Claimant did file a claim and presumably paid the requisite filing fee. Were I to grant the motion and dismiss the claim, Claimant could be prejudiced by having to pay an additional filing fee.

For these reasons, I find that the previous decision and order must be vacated. However, rather than denying motion M-66760 and dismissing the claim, the interests of justice would be best served by placing motion M-66760 back on the calendar and permitting Defendant to submit opposition to that motion to the Court and to Claimant.

Based upon the foregoing it is hereby:

ORDERED, that Defendant's motion to vacate the Court's decision and order filed on November 3, 2003, is granted to the extent that motion M-66760 is to be placed back on the Court's calendar and made returnable July 28, 2004. The Clerk is directed to provide Defendant's counsel with a copy of Claimant's original motion papers for M-66760. Defendant and Claimant are directed to submit their opposition and any relevant reply papers in accordance with the provisions of the CPLR. It is further,

ORDERED, that, to the extent it has not done so already, Defendant's time to submit an answer to Claim 108638, and all discovery relating to that claim, is hereby stayed pending the resolution of motion M-66760 on July 28, 2004.

June 15, 2004
Rochester, New York

Judge of the Court of Claims