New York State Court of Claims

New York State Court of Claims

ANKUM v. STATE OF NEW YORK, #2005-018-480, Claim No. 103757, Motion No. M-69930


Synopsis


Motion to vacate default judgment is GRANTED and the case is restored to the trial calendar.

Case Information

UID:
2005-018-480
Claimant(s):
ERIC ANKUM
Claimant short name:
ANKUM
Footnote (claimant name) :

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

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
103757
Motion number(s):
M-69930
Cross-motion number(s):

Judge:
DIANE L. FITZPATRICK
Claimant's attorney:
Eric AnkumPro Se
Defendant's attorney:
ELIOT SPITZER
Attorney General of the State of New York
By: Edward F. McArdle, Esquire
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
August 8, 2005
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Claimant brings a motion to vacate his default[1] and restore his claim to the trial calendar.

Defendant opposes the relief.

Claimant's verified claim was filed on January 31, 2001, in which he alleges that at approximately 6:30 p.m. on January 18, 2001, he was walking on a walkway outside the infirmary at Cape Vincent Correctional Facility when he slipped and fell on a patch of ice causing him injuries. He also alleges that he did not receive proper treatment for his injuries at the infirmary. Claimant filed an amended claim on April 4, 2001, describing in more detail his allegations of wrongdoing.

For background purposes, this claim was originally scheduled for trial on September 13, 2004. Claimant failed to appear on that date and his claim was dismissed by an Order filed on September 24, 2004. Thereafter, it was brought to the Court's attention that Claimant had failed to get proper notice of that trial date, due to a series of clerical errors, and the Court restored the claim to the trial calendar by an Order filed November 22, 2004. The trial was originally rescheduled for February 2, 2005, but the Court had to again reschedule it for March 3, 2005. Claimant did not appear on the day of trial so the Court dismissed the claim by Order filed April 4, 2005.

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; Winney v Co. of Saratoga,252 AD2d 882, 884). To show a meritorious claim, typically an affidavit of merit is provided, however, a verified pleading may be used as well (see Juseinoski v Bd of Educ. of City of New York, 15 AD3d 353).

Claimant states that the reason that he did not appear at trial on March 3, 2005 was because he had car trouble. Claimant had someone call the Court on the day of trial, approximately a half hour after the trial was to commence, to advise that he was having car trouble. Claimant also attaches to his motion papers a receipt purportedly for towing and an alternator dated the day of the trial. Under these circumstances, the Court finds that Claimant has presented a reasonable excuse for his default.

Although Claimant did not provide an affidavit of merit to support his claim, he did file a verified amended claim, which the Court has used in place of an affidavit of merit. The quantum of proof necessary on motion to vacate a default is not as great as required to defeat a motion for summary judgment (see Winney, 252 AD2d at 884). Here, Claimant has set forth a potentially meritorious cause of action.

Accordingly, Claimant's motion is granted, the Order dismissing the claim filed on April 4, 2005, is hereby VACATED and the claim is restored to the Court's trial calendar.



August 8, 2005
Syracuse, New York

HON. DIANE L. FITZPATRICK
Judge of the Court of Claims


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


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


Affidavit of Eric Ankum, in support, with attachment.......................................2


Affirmation of Edward F. McArdle, Esquire, Assistant Attorney General

in opposition............................................................................................3



[1] Claimant does not actually request that his default be vacated, however a review of his submitted documents makes it clear that this is the relief he seeks.